The opinion
NO. COA14-251
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Guilford County
Nos. 12 CRS 77582-85
13 CRS 24290
12 CRS 77220-24
DELUNTA ALUNDUS HULL
and
SHARRELLE LYNN DAVIS
Appeal by defendants from judgments entered 6 August 2013
by Judge James M. Webb in Guilford County Superior Court. Heard
in the Court of Appeals 28 August 2014.
Roy Cooper, Attorney General, by Anne J. Brown and Richard
H. Bradford, Special Deputy Attorneys General, for the
State.
Staples Hughes, Appellate Defender, by Charlesena Elliott
Walker, Assistant Appellate Defender, for defendant-
appellant Hull.
Amanda S. Zimmer for defendant-appellant Davis.
STEELMAN, Judge.
Where there was evidence of all of the elements of the
charge of larceny from the person, the trial court did not err
in denying defendants’ motions to dismiss. The trial court did
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not commit plain error in its jury instructions on that charge.
Where defendant was sentenced from the presumptive range, the
trial court did not err by failing to make findings in
mitigation or aggravation, or in not sentencing defendant from
the mitigated range. Where the State presented evidence that
Stuart’s computer was in proximity to her and under her control,
the trial court did not err in declining to submit the lesser
charge of misdemeanor larceny to the jury.
I. Factual and Procedural Background
On 8 May 2012, Rashad Perry, Robert Hawkins, David
Williams, Gabrielle Stuart, Braielyn Peoples and Emory Matthews
were gathered at Hawkins’ apartment in Greensboro for “study and
fellowship” in preparation for exam week. Perry and Hawkins
stepped outside, and were approached by a man armed with a
handgun, who robbed them of their cellular telephones. Two more
people, Delunta Alandis Hull (Hull) and Sharrelle Lynn Davis
(Davis), then approached, and the five people – Perry, Hawkins,
Hull, Davis, and the gunman – entered Hawkins’ apartment.
Davis pulled Perry into the kitchen while Hull and the
gunman went through the apartment. Two laptop computers and
another cellular telephone were taken. One of the computers
belonged to Stuart.
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Prior to the time of the theft, Stuart had been working on
her physics homework. While studying, Stuart, along with
Peoples, Hawkins, Matthews, and Perry, was playing a computer
game called “Dance Central” on the television. Each would take
turns playing the game. At the time of the theft, it was
Stuart’s turn to play. Shortly after her turn started, Stuart
was “knocked [] out of the game and [] realized something was
out of order.” She saw that Hull and the gunman had possession
of her laptop, which had been on a table three feet away from
her, with her homework still visible on the screen.
Davis and Hull were each indicted on four counts of robbery
with a dangerous weapon, and one count of first-degree burglary.
At the close of the State’s evidence, defendants moved to
dismiss the charges. The trial court granted these motions with
respect to the robbery with a dangerous weapon of Stuart, and
denied them as to the other charges. With respect to the
robbery of Stuart, the trial court submitted the lesser included
offense of larceny from the person to the jury.
Defendants were found guilty of all charges. Hull was
sentenced to consecutive active prison terms of 51-74 months for
the robbery of Hawkins, 51-74 months for the robbery of
Williams, and 5-15 months for the larceny from Stuart. He was
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also sentenced to concurrent active prison terms of 51-74 months
for the robbery of Perry and 51-74 months for first-degree
burglary. Davis was sentenced to consecutive active prison
terms of 57-81 months for the robbery of Hawkins, 57-81 months
for the robbery of Williams, and 6-17 months for the larceny
from Stuart. She was also sentenced to concurrent active prison
terms of 57-81 months for the robbery of Perry, and 57-81 months
for first-degree burglary.
Defendants appeal.
II. Larceny from the Person
In defendants’ first and second arguments, they contend
that the trial court erred by denying their motions to dismiss
the charge of larceny from the person as to Stuart, or
alternatively that the trial court committed plain error when it
instructed the jury on that offense. We disagree.
A. Standard of Review
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007).
We review “unpreserved issues for plain error when they
involve either (1) errors in the judge’s instructions to the
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jury, or (2) rulings on the admissibility of evidence.” State v.
Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done,” or “where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,” or the error has
“‘resulted in a miscarriage of justice or in
the denial to appellant of a fair trial’” or
where the error is such as to “seriously
affect the fairness, integrity or public
reputation of judicial proceedings” or where
it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,
333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983)).
B. Analysis
At the close of State’s evidence, defendants moved to
dismiss the charge of robbery as to Stuart. The trial court
dismissed that charge, but submitted to the jury the lesser
offense of larceny from the person. On appeal, defendants first
contend that the trial court erred in denying their motions to
dismiss the charge of larceny from the person.
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The essential elements of larceny are: (1) taking the
property of another; (2) carrying it away; (3) without the
owner’s consent; and (4) with intent to permanently deprive the
owner of the property. State v. Wilson, 154 N.C. App. 686, 690,
573 S.E.2d 193, 196 (2002). It is larceny from the person if
the property is taken from the victim’s person or “within the
victim’s protection and presence at the time of the taking.”
Id. at 691, 573 S.E.2d at 196 (quoting State v. Barnes, 121 N.C.
App. 503, 505, 466 S.E.2d 294, 296, aff’d, 345 N.C. 146, 478
S.E.2d 188 (1996)).
In the instant case, the State presented evidence that
Stuart was using her computer to do her physics homework and,
while studying, was also playing a computer game called “Dance
Central.” The game was operated by a Kinect video game system
connected to Hawkins’ television. A participant of the game was
to duplicate dance moves on the television display. The
participant’s dance moves were captured by a video camera and
the game then compared the displayed moves with the
participant’s moves in a side by side display.
When defendants and the gunman entered the apartment, it
was Stuart’s turn to play the game. She had just started her
turn – Stuart testified that it was “shortly after I got like
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maybe like a verse -- like a couple of sentences into the song”
– when Stuart was “bumped” by someone, which caused her to be
“kicked out” of the game. At that point, she saw defendants
absconding with her laptop.
Defendants contend that Stuart was unaware of the taking
until after it occurred; however, the evidence suggests that
Stuart became aware of the taking as it occurred. Specifically,
Matthews testified:
I was pretty much oblivious to what was
happening, so I was just like who was this
person picking up [Stuart]'s laptop, and so
I asked [Stuart], I said, "Do you know this
person?" and she said, "No." I was like,
"Well, she took your laptop."
Stuart saw the laptop among the items that defendants were
stealing, and which were in the possession of defendants as they
exited the apartment.
The test set forth in Barnes was whether the property
stolen was taken from the victim’s person or within the victim’s
protection and presence when the property was stolen. Barnes,
121 N.C. App. at 505, 466 S.E.2d at 296. In the instant case,
the laptop computer was not on Stuart’s person when it was
taken. However, it was about three feet from Stuart, and the
homework, from which she was taking a momentary break, was still
on the computer screen. The computer was therefore within her
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protection and presence at the time it was taken. The brief
break from her studies did not remove the laptop from her
protection or presence.
The trial court did not err in denying the motions of the
defendants to dismiss the charge of larceny from the person at
the close of all of the evidence.
Defendants next argue, in the alternative, that the trial
court erred in its instructions to the jury with regard to the
charge of larceny from the person. Since defendants failed to
object to the trial court’s jury instruction at trial, we review
this issue only for plain error.
The trial court charged the jury in accordance with North
Carolina Pattern Jury Instruction Criminal 216.20 as follows:
“Property is stolen from the person if it was under the
protection of the person at the time. Property may be under the
protection of the person although not actually attached to her,
for that which is taken in her presence is, in law, taken from
her person.” See N.C.P.I., Crim. 216.20, fn. 1 (2011).
Defendants contend that this instruction was based upon the
Supreme Court case of State v. Buckom, 328 N.C. 313, 401 S.E.2d
362 (1991), and that since Buckom was decided, the Supreme Court
narrowed the definition of that element of larceny from the
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person. Defendants cite to the case of State v. Barnes, in
which our Supreme Court held that “for larceny to be ‘from the
person,’ 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.” Barnes, 345 N.C. at 149, 478 S.E.2d at
190 (emphasis in original).
Defendants contend that Barnes abrogated the holding in
Buckom. We hold that there is no substantial difference between
the holdings of Buckom and Barnes. In Buckom, the Court
observed that:
Taken in the context of the foregoing common
law principles, “[p]roperty is stolen ‘from
the person,’ if it was under the protection
of the person at the time.... [P]roperty may
be under the protection of the person
although not actually ‘attached’ to him.” R.
Perkins & R. Boyce, Criminal Law 342 (3d ed.
1982) (footnotes omitted). For example, if a
jeweler places diamonds on a counter for
inspection by a customer, under the
jeweler's eye, the diamonds remain under the
protection of the jeweler. Id. It has not
been the general interpretation that larceny
from the person “requires an actual taking
from the person, and is not committed by a
taking from the immediate presence and
actual control of the person.... As said by
Coke in the 1600's: ‘for that which is taken
in his presence, is in law taken from his
person.’ ” Id. at 342-43 (quoting 3 Coke,
Institutes *69).
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Buckom, 328 N.C. at 317-18, 401 S.E.2d at 365. In Barnes, the
Court did not disagree with this analysis; in fact, it relied
upon Buckom:
The crime of larceny from the person is
regularly understood to include the taking
of property “from one's presence and
control.” Thus, for larceny to be “from the
person,” 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)
(citing, inter alia, Buckom, 328 N.C. at 317-18, 401 S.E.2d at
365) (citations omitted) (emphasis in original). Barnes
ultimately distinguished Buckom based upon the facts of the
case, but in terms of the law the two opinions were in
agreement. The addition of the words “at the time the property
is taken” adds nothing to the legal analysis of the elements of
the crime. The only temporally relevant time is the time of the
theft itself.
Even assuming arguendo that Barnes superseded the holding
in Buckom, defendants have failed to show how this impacts the
outcome of their case. Whether we rely upon Buckom or Barnes,
there was substantial evidence that the property was taken from
Stuart’s presence, that she was using the computer to perform
her physics homework, and that the computer was under her
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control or protection at the time it was taken. Even had the
jury been instructed as defendants suggest, we hold that it
would not have had a “probable impact on the jury's finding that
the defendant was guilty.” Defendants have failed to show that
the trial court committed plain error in its jury instruction
concerning the charge of larceny from the person.
This argument is without merit.
III. Mitigating Factor
In her third argument, Davis contends that the trial court
abused its discretion by failing to find a statutory mitigating
factor, and by failing to consider mitigating evidence. We
disagree.
A. Standard of Review
The standard of review for application of
mitigating factors is an abuse of
discretion. The court shall consider
evidence of aggravating or mitigating
factors present in the offense that make an
aggravated or mitigated sentence as
appropriate, but the decision to depart from
the presumptive range is in the discretion
of the court. The court shall make findings
of the aggravating and mitigating factors
present in the offense only if, in its
discretion, it departs from the presumptive
range of sentences specified in G.S. 15A–
1340. 17(c)(2).
State v. Hagans, 177 N.C. App. 17, 31, 628 S.E.2d 776, 785
(2006) (citations and quotations omitted).
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B. Analysis
We have previously held that the trial court is required to
make findings of aggravating and mitigating factors “only if, in
its discretion, it departs from the presumptive range of
sentences[.]” Hagans, 177 N.C. App. at 31, 628 S.E.2d at 785.
Davis was sentenced from the presumptive range. Accordingly, we
hold that the trial court was not required to make findings of
aggravating or mitigating factors, or to impose a mitigated
range sentence.
This argument is without merit.
IV. Lesser Included Offense
In his third argument, Hull contends that the trial court
erred in denying defendant’s request to instruct the jury on the
lesser included offense of misdemeanor larceny with regard to
the theft of Stuart’s laptop computer. We disagree.
A. Standard of Review
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo by this Court.”
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149
(2009). “An instruction on a lesser-included offense must be
given only if the evidence would permit the jury rationally to
find defendant guilty of the lesser offense and to acquit him of
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the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d
767, 771 (2002).
B. Analysis
Hull contends that Stuart’s lack of awareness of the theft
as it happened did not support a conviction of larceny from the
person, but rather supported a conviction for the lesser offense
of misdemeanor larceny. Hull cites to our decision in State v.
Lee, 88 N.C. App. 478, 363 S.E.2d 646 (1988), in which we held
that the theft of a woman’s purse from a shopping cart while she
was several steps away and unaware of the theft did not
constitute larceny from the person, but rather constituted
misdemeanor larceny.
Hull, in his argument on appeal, challenges only the
element of proximity and control. As he does not challenge the
other elements of larceny from the person, we limit our review
only to proximity and control. See State v. Lucas, ___ N.C.
App. ___, ___, 758 S.E.2d 672, 676 (2014).
We note first that Lee was decided prior to both Buckom and
Barnes, and that these later Supreme Court cases clarified the
law of larceny from the person. We further note that, in
contrast with the victim in Lee, who did not realize that the
theft had occurred until sometime later, the evidence in the
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instant case was that Stuart became aware of the theft
immediately, as it was occurring. We hold that the instant case
is distinguishable from Lee.
The crucial elements of larceny from the person are
proximity and control. The evidence in the instant case
supports both elements. Stuart’s awareness, although not one of
the elements of the offense, is a factor to be considered in
analyzing her control. As stated in section II B of this
opinion, Stuart was sufficiently aware of the larceny as it
occurred to have been in control of her property.
Because the evidence satisfied the element of proximity and
control, and Hull challenges no other elements of larceny from
the person, we hold that the evidence satisfied all of the
requirements of the greater offense. The trial court did not
err in declining to instruct the jury upon the lesser offense of
misdemeanor larceny.
This argument is without merit.
NO ERROR.
Judge GEER concurs.
Judge HUNTER, Robert N., Jr. concurred prior to 6 September
2014.