{
  "id": 8155808,
  "name": "STATE OF NORTH CAROLINA v. LAMONT DARRELL CARTER",
  "name_abbreviation": "State v. Carter",
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    "judges": [
      "Judges WYNN and BRYANT concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. LAMONT DARRELL CARTER"
    ],
    "opinions": [
      {
        "text": "HUNTER, Judge.\nLamont Darrell Carter (\u201cdefendant\u201d) appeals from the trial court\u2019s 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.\nOn 20 May 2004, Sean Rowlett (\u201cRowlett\u201d) and Marvin Cooks (\u201cCooks\u201d), 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 replenishm\u00e9nt process, placing the grocery cart with the cash to his left.\nRowlett was \u201cabout to insert [his] settlement card\u201d into the ATM to balance the machine when he felt a spray hit the back of his head. Rowlett testified that he \u201cthought it was like a little kid with a water gun[.]\u201d 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 \u201cbum\u201d; he believed it might 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\u2018based on evidence that defendant and Cooks, Rowlett\u2019s driver, acted in concert to commit the crime.\nCooks 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.\nOn 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.\nI.\n\u201cWhen ruling on a motion to dismiss, the trial court must determine whether the prosecution has presented \u2018substantial evidence of each essential element of the crime.\u2019 \u201d 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)). \u201c \u2018Substantial evidence\u2019 is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion].]\u201d State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (internal citation omitted). \u201c \u2018The 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 \u201c[contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.\u201d \u2019 \u201d 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).\nCommon law robbery \u201cis 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.\u201d State v. Stewart, 255 N.C. 571, 572, 122 S.E.2d 355, 356 (1961). \u201cIt is not necessary to prove both violence and putting in fear \u2014 proof of either is sufficient.\u201d State v. Moore, 279 N.C. 455, 458, 183 S.E.2d 546, 547 (1971).\nThe primary element in dispute here is the final one: Taking the property \u201cby violence or putting [the victim] in fear.\u201d Stewart, 255 N.C. at 572, 122 S.E.2d at 356.\nGenerally 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 \u201call 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.\u201d\nState v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944) (quoting 46 Am. Jur. 146) (emphasis added).\nThe 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\u2019s 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\u2019s obtaining the money could be considered common law robbery.\nThe State argues to this Court that the above-quoted language means that any time a person\u2019s \u201cresistance to the taking\u201d of property is \u201cprevented],\u201d constructive force \u2014 and therefore a common law robbery \u2014 has occurred. This meaning only appears when the phrase is taken out of context. The full sentence states: \u201cunder constructive force are included \u2018all 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^]\u201d 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\u2019s argument that Rowlett\u2019s lack of resistance proves that he was put in fear is unconvincing, particularly considering Rowlett\u2019s own testimony that he was instructed not to give chase in the event of a robbery.\nAlthough 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 \u2014 that defendant took money from the person of another, or in his presence, against his will \u2014 together constitute the crime of larceny from the person.\nAs our Supreme Court has stated, \u201clarceny from the person differs from robbery in that larceny from the person lacks the requirement that the victim be put in fear.\u201d State v. Buckom, 328 N.C. 313, 317, 401 S.E.2d 362, 365 (1991). Defendant also argues to this Court that, because the money involved was in a cart to Rowlett\u2019s 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\u2019s argument on this point here.\nFor the crime of larceny from the person, the property must be taken \u201c \u2018from one\u2019s presence and controlf,]\u2019 \u201d which our Supreme Court has stated means \u201cthe 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.\u201d 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\u2019 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\u2019s 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\u2019s 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 larceny from 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).\nIn 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\u2019s line of sight, as we noted in Barnes, \u201cif 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.\u201d 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)).\nThus, 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.\nII.\nAt trial, Cooks, defendant\u2019s alleged co-conspirator, was allowed to testify that defendant and another person had \u201csent [him] threats\u201d 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\u2019s testimony as to threats he received was unduly prejudicial, and that the letters were not properly authenticated before being read to the jury. Both of these arguments are without merit.\nWe 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).\nCooks\u2019s 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: \u201c[H]e \u2014 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\u2019t.\u201d He also testified that he \u201cdidn\u2019t want to participate [,]\u201d but the pair \u201ckept pushing and urging.\u201d Defendant argues that this testimony exaggerated his propensity for violence, and thus \u201cits probative value is substantially outweighed by the danger of unfair prejudice\u201d and so should have been excluded. N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2005).\nThe 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 \u201cTwo Guns,\u201d 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 letters to be read without authenticating their handwriting, they were hearsay and thus inadmissible.\nRegardless 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\u2019s assignments of error (quoted above) are just two sentences of Cooks\u2019s testimony as to defendant\u2019s threatening behavior, the whole of which covers several pages of the record. The removal of these two sentences would have no discemable effect on the thrust of Cooks\u2019s testimony as to defendant\u2019s 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.\nDefendant 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.\nIII.\nFinally, defendant argues that his counsel\u2019s failure to object to the mention of Cooks\u2019s having taken a polygraph test constituted ineffective assistance of counsel. This argument is without merit.\nThe fact that Cooks had taken a polygraph test came up three times during the trial: Twice during Cooks\u2019s own testimony, and once during the testimony of Detective Jackie Taylor of the Raleigh Police 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: \u201cI fully explained to him how the police threatened you with a murder charge if you didn\u2019t tell them what they wanted to hear, even though you passed a polygraph test.\u201d Next, during defense counsel\u2019s cross-examination of Cooks, she asked: \u201cDid you tell the police officers that you had to go about four weeks ago and take a polygraph?\u201d This was repeated twice after the State objected and the court overruled it before Cooks answered; he then answered \u201c[y]es\u201d and defense counsel moved on to what else Cooks had told the police. Finally, during Detective Taylor\u2019s testimony, defense counsel read aloud a portion of the detective\u2019s report summarizing what Cooks had told them: \u201cI had to go about four weeks ago and take a polygraph at the police department.\u201d\nDefense counsel\u2019s failure to object to these statements at trial means that this Court reviews defendant\u2019s arguments under a plain error standard. See State v. Mitchell, 328 N.C. 705, 711, 403 S.E.2d 287, 290 (1991). However, \u201c[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\u2019s errors, there would have been a different result in the proceedings.\u201d 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 a different result would have been reached. As such, this assignment of error is overruled.\nIV.\nWe find no prejudicial error resulted from the admission of the letters, testimony of threats, or evidence of Cooks\u2019s 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.\nVacated and remanded.\nJudges WYNN and BRYANT concur.\n. We note that, while defendant assigned error to various aspects of his conviction for conspiracy to commit common law robbery, he made no arguments as to that conviction to this Court, and as such we deem these assignments of error abandoned. See N.C.R. App. P 28(a).",
        "type": "majority",
        "author": "HUNTER, Judge."
      }
    ],
    "attorneys": [
      "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."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LAMONT DARRELL CARTER\nNo. COA06-1645\n(Filed 2 October 2007)\n1. Robbery\u2014 common law \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 taking property by violence or putting victim in fear \u2014 larceny from person\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of common law robbery, and the case is remanded for a conviction and sentencing on larceny from the person, because: (1) while there was a battery when the victim was sprayed with pepper spray on the back of the head, it did not induce the victim to part with the money nor did the force instill the necessary fear; (2) the State\u2019s argument that the victim\u2019s lack of resistance proved that he was put in fear was unconvincing when the victim\u2019s own testimony was that he was instructed not to give chase in the event of a robbery; (3) the record showed no evidence that the money was taken from the victim by the use of violence or putting him in fear; and (4) there was sufficient evidence of larceny from the person when the victim had the money close at hand and was in the middle of replenishing an ATM when the money was removed from his possession.\n2. Evidence\u2014 prior crimes or bad acts \u2014 threats\u2014sending threatening letters \u2014 authentication\u2014failure to show prejudice\nThe trial court did not err in a common law robbery and conspiracy to commit common law robbery case by allowing defendant\u2019s alleged coconspirator 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, because: (1) regardless of whether these pieces of evidence were in fact inadmissible, defendant cannot show that without them a different result would likely have been reached; and (2) defendant only argues that the letters are highly prejudicial since the handwriting was not authenticated, which is in fact an. argument as to why they are hearsay instead of why they are prejudicial.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object \u2014 failure to show different result would have been reached\nDefendant did not receive ineffective assistance of counsel in a common law robbery and conspiracy to commit common law robbery case based on his trial counsel\u2019s failure to object to the mention of his alleged coconspirator having taken a polygraph test, because: (1) defendant failed to object to these statements at trial, and thus review is under the plain error standard; (2) the fact that counsel made an error, even an unreasonable one, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings; and (3) given the very slight nature of these pieces of evidence, defendant cannot show that without them a different result would have been reached.\nAppeal 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.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Dorothy Powers, for the State.\nCrumpler, Freedman, Parker, & Witt, by Vincent F. Rabil, for defendant-appellant."
  },
  "file_name": "0259-01",
  "first_page_order": 289,
  "last_page_order": 297
}
