State v. Jacobs

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, bu t may be permitted in

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of

A p p e l l a t e P r o c e d u r e .

NO. COA14-306

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Sampson County

No. 07 CRS 51724

DEANGELO JACOBS

On writ of certiorari to review judgment entered 8 October

2009 by Judge Russell J. Lanier, Jr., in Sampson County Superior

Court. Heard in the Court of Appeals 30 June 2014.

Attorney General Roy Cooper, by Assistant Attorney General

Lora C. Cubbage, for the State.

Leslie C. Rawls for defendant-appellant.

BRYANT, Judge.

Where the State presented substantial evidence that

defendant acted in concert to commit common-law robbery,

defendant’s motion to dismiss was properly denied.

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On 24 September 2007, defendant Deangelo Jacobs was

indicted on one count each of robbery with a dangerous weapon

and possession of a firearm by a convicted felon. The matter

came on for trial during the 5 October 2009 criminal session of

Sampson County Superior Court, the Honorable Russell J. Lanier,

Jr., Judge presiding.

The State’s evidence tended to show the following. On 22

May 2007, Timothy Johnson was walking home after midnight when

he saw defendant and two friends standing on a street corner.

Johnson recognized the men from the neighborhood and knew one of

defendant’s associates by the name “Earl.”

When Earl called out to him, Johnson walked over to the

group. Defendant approached Johnson and struck him in the face.

Johnson returned the blow, knocking defendant to the ground, and

was set upon by defendant’s associates. Johnson fell down and

was hit and kicked by the three men. When Johnson stood up,

Earl “snatched” $7 from his pocket. Johnson began to run and

heard a popping sound. He turned around and saw defendant

firing at him with a handgun. Johnson “ran straight to the

house” and had his girlfriend drive him to the police station.

On 7 October 2009, a jury found defendant guilty of common-

law robbery and not guilty of possession of a firearm by a

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convicted felon. The trial court sentenced defendant to an

active prison term of sixteen to twenty months. Defendant

appeals.

_____________________________

In his sole argument on appeal, defendant contends the

trial court erred by denying his motion to dismiss at the close

of the State’s evidence. We disagree.

“Upon review of a motion to dismiss, the court determines

whether there is substantial evidence, viewed in the light most

favorable to the State, of each essential element of the offense

charged and of the defendant being the perpetrator of the

offense.” State v. Lane, 163 N.C. App. 495, 499, 594 S.E.2d

107, 110 (2004) (citations omitted). “Substantial evidence is

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” State v. Brown, 310 N.C.

563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Smith, 300

N.C. 71, 78, 265 S.E.2d 164, 169 (1980)). “[T]he State is

entitled to every reasonable intendment and every reasonable

inference to be drawn therefrom; contradictions and

discrepancies are for the jury to resolve and do not warrant

dismissal[.]” State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841,

843 (2011) (citation and quotation omitted). If the evidence

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“is sufficient only to raise a suspicion or conjecture as to

either the commission of the offense, or the identity of the

defendant as the perpetrator of it, the motion for nonsuit

should be allowed. This is true even though the suspicion so

aroused by the evidence is strong.” In re Vinson, 298 N.C. 640,

656—57, 260 S.E.2d 591, 602 (1979) (citation omitted).

“Common law robbery is defined as ‘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.

Jones, 339 N.C. 114, 164, 451 S.E.2d 826, 854 (1994) (quoting

Smith, 305 N.C. at 700, 292 S.E.2d at 270). Under the doctrine

of concerted action, “[a] person may be found guilty of

committing a crime if he is at the scene acting together with

another person with a common plan to commit the crime, although

the other person does all the acts necessary to commit the

crime.” State v. Jefferies, 333 N.C. 501, 512, 428 S.E.2d 150,

156 (1993) (citing State v. Joyner, 297 N.C. 349, 255 S.E.2d 390

(1979)). To sustain a conviction, the evidence must show that

the defendant (1) was present at the scene of the crime and (2)

“act[ed] together with another who does the acts necessary to

constitute the crime pursuant to a common plan or purpose.”

State v. Wallace, 104 N.C. App. 498, 504, 410 S.E.2d 226, 230

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(1991) (citing State v. Williams, 299 N.C. 652, 656—57, 263

S.E.2d 774, 777—78 (1980)). Moreover, the fact that a

“defendant did some act forming a part of the crime charged

would be strong evidence that he was acting together with

another who did other acts leading toward the crimes’

commission.” Joyner, 297 N.C. at 356—57, 255 S.E.2d at 395.

Defendant argues the trial court erred in denying his

motion to dismiss because the evidence was insufficient to show

that he acted in concert with Earl in robbing Johnson. While

conceding the evidence may have shown a common purpose to

assault Johnson, defendant contends that it raises only a

suspicion or conjecture that he shared a common purpose to

commit the robbery.

In State v. Ikard, the defendant sat in the back seat of a

vehicle with three men and the victim. State v. Ikard, 71 N.C.

App. 283, 284, 321 S.E.2d 535, 536 (1984). When the vehicle

stopped, the defendant and his three associates exited. Id.

The defendant walked 20–25 feet away from the vehicle taking

with him the victim’s radio. Id. When the victim requested the

radio, two of the defendant’s associates returned to the car.

Id. One of them threatened the victim with a shotgun while the

other took $18 from the victim’s wallet. Id. Finding this

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evidence insufficient to support concerted action for common law

robbery, this Court noted that:

The State introduced no evidence tending to show

that defendant knew that his companions were

going to rob Mr. Anderson . . . . Nor was there

any evidence tending to show that defendant

encouraged the other men in the commission of the

crime, or that he by word or deed indicated to

them that he stood prepared to render assistance.

The most that can be said on this evidence is

that defendant was present when the crime was

committed, and this is insufficient to take the

case to the jury.

Id. at 285—86, 321 S.E.2d at 537.

Here, taken in the light most favorable to the State, there

is substantial evidence from which the jury could reasonably

infer that defendant and Earl joined in a common purpose to rob

Johnson. Defendant was not just “present” during the robbery;

he acted “in conjunction” with Earl. Joyner, 297 N.C. at 356,

255 S.E.2d at 395. Unlike the defendant in Ikard, defendant was

both “prepared” to and did “render assistance.” Ikard, 71 N.C.

App. at 285—86, 321 S.E.2d at 537. Defendant initiated the

physical encounter, struck Johnson in the face, and kicked

Johnson while Johnson was on the ground. Defendant also ended

the physical encounter by firing his handgun as Johnson was

running away.

In contrast to Ikard, the assault and robbery of Johnson

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were not “distinct and separate” acts. State v. Lambert, 149

N.C. App. 163, 167, 560 S.E.2d 221, 224 (2002). Defendant’s

assault of Johnson gave Earl an opportunity to reach into

Johnson’s pocket. As such, defendant was not separated from the

location of the robbery, see Ikard, 71 N.C. App. at 284—86, 321

S.E.2d at 536—37, nor was there significant time between

defendant’s and Earl’s actions. See Lambert, 149 N.C. App. at

167, 560 S.E.2d at 224 (noting “no separation by either time or

proximity between the [defendant’s] bottle-throwing” attacks and

his associates beating the victim to death with a tree limb).

The evidence thus supports a reasonable inference that defendant

was trying to disable Johnson so Earl could take money from him,

and afterwards encouraged Johnson to flee by shooting at him.

Accordingly, defendant’s argument is overruled.

No error.

Judges STROUD and HUNTER, Robert N., Jr., concur.

Report per Rule 30(e).