{ "id": 3734259, "name": "STATE OF NORTH CAROLINA v. DECARLOS MONTE MOSES", "name_abbreviation": "State v. Moses", "decision_date": "2010-07-20", "docket_number": "No. COA09-1468", "first_page": "629", "last_page": "640", "citations": [ { "type": "official", "cite": "205 N.C. App. 629" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "663 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641512 ], "year": 2008, "pin_cites": [ { "page": "347", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0340-01" ] }, { "cite": "669 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642341 ], "year": 2008, "pin_cites": [ { "page": "866", "parenthetical": "quoting State v. Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002)" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0864-01" ] }, { "cite": "666 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641944 ], "year": 2008, "pin_cites": [ { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0845-01" ] }, { "cite": "628 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635606 ], "year": 2006, "pin_cites": [ { "page": "748", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0735-01" ] }, { "cite": "451 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "339 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556305 ], "year": 1994, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0477-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-71.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "234-35" } ], "opinion_index": 0 }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 3, "year": 1932, "pin_cites": [ { "page": "304" }, { "page": "184" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "191 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159574 ], "year": 2008, "pin_cites": [ { "page": "284", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0276-01" ] }, { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1982, "pin_cites": [ { "page": "816" }, { "page": "815" }, { "page": "815-16" }, { "page": "815-16" }, { "page": "816" }, { "page": "817" }, { "page": "816" } ], "opinion_index": 0 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "235" }, { "page": "234" }, { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0225-01" ] }, { "cite": "606 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "432-33", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413532 ], "year": 2005, "pin_cites": [ { "page": "699-700", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0696-01" ] }, { "cite": "527 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "322", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091991 ], "year": 2000, "pin_cites": [ { "page": "95", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0090-01" ] }, { "cite": "560 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "782" } ], "opinion_index": 0 }, { "cite": "355 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220055 ], "year": 2002, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0294-01" ] }, { "cite": "194 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162770 ], "year": 2008, "pin_cites": [ { "page": "520", "parenthetical": "quoting State v. Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0516-01" ] }, { "cite": "684 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "516", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "685 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "115", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "193 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162029 ], "year": 2008, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0150-01" ] }, { "cite": "360 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789392 ], "year": 2006, "pin_cites": [ { "page": "419", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0400-01" ] }, { "cite": "231 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "291 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558753 ], "year": 1977, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0505-01" ] }, { "cite": "271 S.E.2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "294", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "301 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565925 ], "year": 1980, "pin_cites": [ { "page": "291", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0279-01" ] }, { "cite": "308 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "321-22" } ], "opinion_index": 0 }, { "cite": "309 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765436 ], "year": 1983, "pin_cites": [ { "page": "521-22" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0512-01" ] }, { "cite": "580 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "413", "parenthetical": "internal quotations and citations omitted" }, { "page": "414", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 133", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186405 ], "year": 2003, "pin_cites": [ { "page": "142", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0133-01" ] }, { "cite": "320 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "673", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753586 ], "year": 1984, "pin_cites": [ { "page": "37", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0034-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "572 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "125", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511176 ], "year": 2002, "pin_cites": [ { "page": "340", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0316-01" ] } ], "analysis": { "cardinality": 1014, "char_count": 25617, "ocr_confidence": 0.767, "pagerank": { "raw": 7.835860494301602e-08, "percentile": 0.45832594873291843 }, "sha256": "81860860b190d8dae888e45a4d93e7bf1cf033d8836ebb8fc82c3eb070dffd24", "simhash": "1:833d5762766dbcd0", "word_count": 4117 }, "last_updated": "2023-07-14T21:30:55.510002+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DECARLOS MONTE MOSES" ], "opinions": [ { "text": "CALABRIA, Judge.\nDecarlos Monte Moses (\u201cdefendant\u201d) appeals from judgments entered upon jury verdicts finding him guilty of robbery with a dangerous weapon, conspiracy to commit robbery, assault by pointing a gun and possession of stolen goods. We find no error at trial, but vacate defendant\u2019s judgment for possession of stolen goods.\nI. Background\nShortly after midnight on 2 July 2008, Kimberly Delores (\u201cMs. Delores\u201d) and Victor Manuel (\u201cManuel\u201d) (collectively \u201cthe victims\u201d) had just completed their shifts at a Hardee\u2019s restaurant in Durham, North Carolina. While the victims were in the Hardee\u2019s parking lot, they were approached by a red and white pickup truck occupied by two males. While the driver of the pickup truck exited the truck and asked the victims for directions, the passenger also exited the truck, pulled out a gun, and demanded money. Manuel surrendered his cellular telephone and his wallet, which contained immigration papers and some amount of cash.\nAfter the robbery, Ms. Dolores called the cell phone that was stolen from Manuel. Ms. Dolores talked to the person who answered and asked for Manuel\u2019s immigration papers to be returned. Later, she also sent a text message to the cell phone making the same request. Ms. Dolores received a response agreeing to return the stolen property for $200. She then contacted the Durham Police Department (\u201cthe DPD\u201d).\nThe DPD, with the cooperation of Ms. Dolores, set up an operation to retrieve the stolen items. Ms. Dolores arranged for a meeting in front of a Target store in Durham on 15 July 2008 to pay money for the return of Manuel\u2019s phone and papers. When defendant and another man (later determined to be defendant\u2019s cousin) arrived at the prearranged time, the DPD placed both men under arrest. After defendant was arrested, Manuel\u2019s cell phone was recovered during a subsequent search of defendant\u2019s apartment.\nDefendant was taken to DPD headquarters. Investigator David Anthony (\u201cInvestigator Anthony\u201d) advised defendant of his Miranda rights at 12:45 p.m. At that time, defendant indicated on a Miranda rights form that he did not wish to speak to the DPD unless he had an attorney present. As a result, Investigator Anthony ceased questioning defendant.\nDefendant was then transferred to DPD Substation 3 for processing. At that time, defendant reinitiated contact with Investigator Anthony and indicated a desire to discuss the case. At 3:55 p.m., Investigator Anthony again advised defendant of his Miranda rights, and defendant waived these rights in writing. Defendant then provided Investigator Anthony with a detailed statement about his involvement with the robbery.\nThe DPD had previously arrested defendant\u2019s alleged partner, Donnelle Wilkerson (\u201cWilkerson\u201d), on 3 July 2008. Wilkerson was driving a red and white pickup truck at the time of his arrest. A search of the pickup truck yielded a .38 caliber Smith and Wesson handgun hidden in a boxing glove. The handgun was later identified by Ms. Delores as the one used during the robbery.\nDefendant was indicted for the offenses of robbery with a dangerous weapon, conspiracy to commit robbery, assault by pointing a gun, and possession of stolen property. Beginning 17 March 2009, he was tried by a jury in Durham County Superior Court. At trial, defendant made a motion to suppress his statement to the DPD. After a voir dire hearing, the trial court orally made findings of fact and conclusions of law denying defendant\u2019s motion.\nWilkerson was called to testify during the trial. Wilkerson was testifying as part of a plea agreement under which he would receive a reduced sentence in exchange for his testimony against defendant. However, Wilkerson refused to answer any of the State\u2019s questions regarding defendant\u2019s involvement with the robbery. As a result, the trial court excused Wilkerson from further testimony.\nOn 19 March 2009, the jury returned verdicts of guilty to all charges. For the conviction for robbery with a dangerous weapon, defendant was sentenced to a minimum of 77 months to a maximum of 102 months. For the conviction for conspiracy to commit robbery, defendant was sentenced to a minimum of 29 months to a maximum of 44 months. These sentences were to be served consecutively in the North Carolina Department of Correction.\nFor the conviction for assault by pointing a gun, defendant was sentenced to 75 days imprisonment. This sentence was suspended and defendant was placed on probation for a period of 36 months. Defendant\u2019s probation would begin at the expiration of his active sentences.\nFinally, for the conviction for possession of stolen property, defendant was sentenced to a minimum of 8 months to a maximum of 10 months in the North Carolina Department of Correction. This sentence was also suspended and defendant was placed on probation for a period of 36 months, to begin at the expiration of all other sentences. Defendant appeals.\nII. Motion to Suppress\nDefendant argues that the trial court erred by denying his motion to suppress his statement to the DPD because defendant did not initiate conversation with Investigator Anthony after he asserted his Miranda right to counsel. We disagree.\nOur review of a denial of a motion to suppress by the trial court is \u201climited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d\nState v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). \u201cIf no exceptions are taken to findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal.\u201d State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (internal quotations and citation omitted).\nDefendant has not challenged any of the trial court\u2019s oral findings of fact. As a result, our review of the trial court\u2019s denial of defendant\u2019s motion to suppress is limited to whether the unchallenged findings of fact ultimately support the trial court\u2019s conclusions of law.\nThe trial court found as fact that defendant initially had invoked his Miranda right to counsel. \u201cOnce an accused invokes his right to counsel during a custodial interrogation, the interrogation must cease and cannot be resumed without an attorney being present unless the accused himself initiates further communication, exchanges, or conversations with the police.\" State v. Fisher, 158 N.C. App. 133, 142, 580 S.E.2d 405, 413 (2003) (internal quotations and citations omitted). When a defendant initiates conduct after asserting his Miranda right to counsel during interrogation, our Courts have required\n(1) \u201ca finding of fact as to who initiated the communication between the defendant and the officers which resulted in his inculpatory statement while in custody and after he had invoked the right to have counsel present during interrogation^]\u201d and (2) \u201cfindings and conclusions establishing whether the defendant validly waived the right to counsel and to silence under the totality of the circumstances . . .\nId. at 144, 580 S.E.2d at 414 (internal citation omitted) (quoting State v. Lang, 309 N.C. 512, 521-22, 308 S.E.2d 317, 321-22 (1983)).\nIn the instant case, the trial court orally found \u201cthat the Defendant reinitiated conversation with Anthony and said he wanted to talk to him.\u201d The trial court also found that defendant was not under the influence of any controlled substances, that defendant was not promised or threatened in any way and that defendant was again fully advised again of his Miranda rights before he provided a statement to the DPD. Finally, the Court found that\nthe Defendant signed a yes when [Investigator Anthony] said do you understand these rights explained to you. Signed yes. Stated yes when [Investigator Anthony] said do you have in mind do you wish to answer any questions. Do you wish to answer any questions without a lawyer present, yes. And the Court finds that he did give a statement at this time.\nThese unchallenged findings of fact, which are binding on appeal, fully support the trial court\u2019s conclusion that \u201cconsidering the totality of the circumstances .\u2022 . . that [defendant] freely, voluntarily and knowingly reinitiated his statement and made a statement and it will come in over the objections of the Defendant.\u201d After reviewing the trial court\u2019s oral findings of fact and conclusions of law, we determine that the trial court properly denied defendant\u2019s motion to suppress. This assignment of error is overruled.\nIII. Wilkerson\u2019s Testimony\nDefendant argues that the trial court erred by not striking Wilkerson\u2019s testimony upon his refusal to answer questions and not submit himself to cross-examination violating defendant\u2019s constitutional right to cross-examine witnesses against him. We disagree.\nWilkerson acknowledged that he knew defendant and that Wilkerson had been arrested for participation in the robbery. However, Wilkerson refused to answer any questions regarding defendant\u2019s involvement in the robbery. As a result, the State requested to treat Wilkerson as a hostile witness. In response, defendant\u2019s counsel stated, \u201cYour Honor, I\u2019m going to object as to the questioning. .. . I\u2019m just, again, afraid of the prejudicial value of having him here and how. they\u2019re going to, the jury\u2019s going to[.]\u201d In response, the trial court, cognizant of the State\u2019s arrangement with Wilkerson, opted to give the State \u201ca little leeway.\u201d When Wilkerson still refused to answer questions regarding defendant\u2019s involvement in the robbery, the trial court excused him. Defendant\u2019s counsel then moved to strike only the State\u2019s final question, \u201cSir, isn\u2019t it true that Monte \u2014 Decarlos Monte Moses, held a gun on the victims \u2014 while you were standing there [.]\u201d The trial court denied the motion to strike because Wilkerson did not answer the question.\nDefendant did not raise any constitutional objections to Wilkerson\u2019s testimony at trial. Additionally, defendant did not make a motion to strike Wilkerson\u2019s entire testimony at trial. \u201c[I]n order for an appellant to assert a constitutional or statutory right on appeal, the right must have been asserted and the issue raised before the trial court. In addition, it must affirmatively appear on the record that the issue was passed upon by the trial court.\u201d State v. McDowell, 301 N.C. 279, 291, 271 S.E.2d 286, 294 (1980) (internal citation omitted); see also N.C.R. App. P. 10(b)(1) (2008) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion . . . [and] to obtain a ruling upon the party\u2019s request, objection or motion.\u201d). Therefore, we limit our review to the specific question that defendant moved to strike.\nThe trial court\u2019s denial of a motion to strike will not be disturbed on appeal absent an abuse of discretion. State v. Smith, 291 N.C. 505, 518, 231 S.E.2d 663, 672 (1977). An abuse of discretion is defined as a ruling that \u201cis manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006) (internal quotations and citation omitted). In the instant case, we discern no abuse of discretion by the trial court. Wilkerson\u2019s refusal to answer the State\u2019s question regarding defendant\u2019s participation in the robbery did not implicate defendant in the crime referred to in the question.\nFurthermore, assuming arguendo that the trial court should have struck the State\u2019s question, defendant has failed to show any prejudice. Defendant\u2019s statement to Investigator Anthony, properly admitted into evidence, clearly indicated that defendant did in fact hold a gun on the victims. This assignment of error is overruled.\nIII. Motion to Dismiss\nDefendant argues that there is insufficient evidence of either robbery or conspiracy to commit robbery to support submitting the charges to the jury. As defendant failed to preserve this issue for appellate review by making a motion to dismiss at trial, we dismiss this argument.\nDefendant concedes that his trial counsel failed to make a motion to dismiss the charges at trial. \u201cA defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action ... at trial.\u201d N.C.R. App. P. 10(b)(3) (2008). Because defendant\u2019s trial counsel failed to make a motion to dismiss any of the charges at trial, we dismiss this assignment of error as not preserved for appellate review.\nIV. Ineffective Assistance of Counsel\nIn the alternative, defendant argues that trial counsel\u2019s failure to make a motion to dismiss the charges of robbery and conspiracy to commit robbery constitutes ineffective assistance of counsel. We disagree.\nTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense. In order to establish prejudice, [t]he defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\nState v. Tanner, 193 N.C. App. 150, 154, 666 S.E.2d 845, 849 (2008), rev\u2019d on other grounds, - N.C. \u2014, - S.E.2d (2010) (internal quotations and citations omitted). In the instant case, we examine the merits of defendant\u2019s motion to dismiss claims to determine whether there is a reasonable probability that defendant\u2019s trial counsel\u2019s failure'to move for dismissal of the charges would have resulted in a different outcome.\n\u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Wright, - N.C. App. -, -, 685 S.E.2d 109, 115 (2009) (internal quotations and citation omitted). \u201cSubstantial evidence is evidence that a reasonable mind might find adequate to support a conclusion.\u201d State v. Coleman, - N.C. App. -, -, 684 S.E.2d 513, 516 (2009) (internal quotations and citation omitted). A trial court\u2019s ruling on a motion to dismiss is reviewed de novo. Id.\n\u201cThe elements of robbery with a dangerous weapon are: \u2018(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of the person is endangered or threatened.\u2019 \u201d State v. Hussey, 194 N.C. App. 516, 520, 669 S.E.2d 864, 866 (2008) (quoting State v. Mann, 355 N.C. 294, 303, 560 S.E.2d 776, 782 (2002)).\n\u201cA criminal -conspiracy is an agreement, express or implied, between two or more persons to do an unlawful act or to do a lawful act by unlawful means.\u201d State v. Clark, 137 N.C. App. 90, 95, 527 S.E.2d 319, 322 (2000) (internal quotations and citation omitted).\nIn order to prove conspiracy, the State need not prove an express agreement; evidence tending to show a mutual, implied understanding will suffice. Nor is it necessary that the unlawful act be completed. A conspiracy may be shown by circumstantial evidence, or by a defendant\u2019s behavior. Conspiracy may also be inferred from the conduct of the other parties to the conspiracy. [P]roof of a conspiracy [is generally] established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.\nState v. Jenkins, 167 N.C. App. 696, 699-700, 606 S.E.2d 430, 432-33 (2005) (internal quotations and citations omitted).\nIn the instant case, the details of defendant\u2019s statements to the DPD provide sufficient evidence to submit these charges to the jury. Defendant\u2019s statement indicated that he and Wilkerson drove together to the Hardee\u2019s parking lot, where they passed a Hispanic male and a white female. The two men then turned around and Wilkerson exited the truck and spoke to Manuel and Ms. Dolores. Defendant removed a silver revolver from inside of a boxing glove that was in the truck, approached the victims and raised the revolver. Wilkerson took the revolver and demanded money from the victims. Defendant and Wilkerson then took two cell phones and a wallet, returned to Wilkerson\u2019s truck and fled. The revolver was later recovered from a boxing glove in Wilkerson\u2019s truck, and Manuel\u2019s cell phone was later recovered from defendant\u2019s apartment. This evidence, taken in the light most favorable to the State, is sufficient for a jury to infer that defendant and Wilkerson conspired to commit and did actually commit the offense of robbery with a dangerous weapon. Therefore, the trial court properly submitted the charges of conspiracy to commit robbery and robbery with a dangerous weapon to the jury. This assignment of error is overruled.\nV. Sentencing\nDefendant argues that the trial court erred by sentencing defendant for both robbery and possession of stolen property, in violation of his constitutional double jeopardy right. We agree.\nDefendant did not object to his sentencing at trial. However, N.C. Gen. Stat. \u00a7 15A-1446(d)(18) provides:\nErrors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division . . . (18) The sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.\nN.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2009). Therefore, we address the merits of defendant\u2019s argument.\n\u201cThe intent of the Legislature controls the interpretation of a statute.\u201d State v. Perry, 305 N.C. 225, 235, 287 S.E.2d 810, 816 (1982).\n[O]ur case law favors the imposition of a single punishment unless otherwise clearly provided by statute. In construing a criminal statute, the presumption is against multiple punishments in the absence of a contrary legislative intent. The rule of lenity forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention.\nState v. Garris, 191 N.C. App. 276, 284, 663 S.E.2d 340, 347 (2008) (internal quotations and citations omitted).\nDefendant relies upon Perry and its progeny for the proposition that imposing a sentence for both robbery and possession of property taken during the commission of the robbery violates double jeopardy principles. While defendant misstates the basis of the holding in Perry, he is correct that the reasoning in Perry is applicable to the instant case.\nIn Perry, our Supreme Court determined that larceny and the possession of stolen goods were separate and distinct crimes because \u201c[e]ach crime \u2018requires proof of an additional fact which the other does not.\u2019 \u201d 305 N.C. at 234, 287 S.E.2d at 815 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 184, 76 L. Ed. 306, 309 (1932)). As a result, the Court held that prosecuting a defendant for both offenses did not violate the constitutional protections against double jeopardy. Id. at 233-34, 287 S.E.2d at 815-16.\nHowever, the Perry Court then analyzed the legislative intent of the recently enacted possession of stolen goods statute, N.C. Gen. Stat. \u00a7 14-71.1, to determine whether the Legislature intended to punish a defendant for both the common law offense of larceny and the statutory offense of possession of stolen goods obtained from that same larceny. Id. at 234-35, 287 S.E.2d at 815-16. The Court explained the impetus for the possession of stolen goods statute as follows:\nPrior to the enactment of our statutes creating the statutory offense of possession of stolen property, the mere possession of such property was not a crime. Then, as now, upon evidence only that an individual was found to be in possession of stolen property, if the State could not prove possession so recent after the larceny as to raise the presumption that that individual stole it, he could not be convicted of larceny. If the State could not prove that someone else stole it, he likewise could not be convicted of receiving stolen property as our Court decisions had established that recent possession did not permit a presumption of receiving. In that situation, many individuals found in possession of stolen property, including known dealers in such goods, were going unprosecuted. We believe it was with this background in mind that the Legislature enacted our possession statutes.\nId. at 235, 287 S.E.2d at 816. As a result, the Perry Court concluded that,\nhaving determined that the crimes of larceny, receiving, and possession of stolen property are separate and distinct offenses, but having concluded that the Legislature did not intend to punish an individual for receiving or possession of the same goods that he stole, we hold that, though a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses.\nId. at 236-37, 287 S.E.2d at 817.\nIn the nearly thirty years since Perry was decided, the Legislature has made no substantive changes to N.C. Gen. Stat. \u00a7 14-71.1 that would indicate its disfavor with the Perry Court\u2019s interpretation of that statute. As a result, we find the statutory interpretation in Perry instructive in the instant case, as \u201c[l]arceny is a lesser included offense of armed robbery.\u201d State v. Beamer, 339 N.C. 477, 485, 451 S.E.2d 190, 194 (1994). As stated in Perry, the Legislature created the statutory offense of possession of stolen goods as a substitute for the common law offense of larceny in those situations in which the State could not provide sufficient evidence that the defendant stole the property at issue. Perry, 305 N.C. at 235, 287 S.E.2d at 816. Considering this enactment background, we conclude that the Legislature also did not intend to subject a defendant to multiple punishments for both robbery and the possession of stolen goods that were the proceeds of the same robbery. Thus, it was improper for the trial court to sentence defendant to separate and consecutive punishments for these two offenses, and we arrest judgment on defendant\u2019s conviction for felony possession of stolen goods.\nVI. Conclusion\nDefendant has failed to bring forth any argument regarding his remaining assignments of error. As such, we deem these assignments of error abandoned pursuant to N.C.R. App. P. 28(b)(6) (2008). Defendant received a fair trial, free from error. However, defendant was improperly sentenced for both robbery with a dangerous weapon and possession of stolen goods; consequently, we vacate defendant\u2019s judgment for felony possession of stolen goods.\nNo error at trial; judgment vacated in part.\nJudges WYNN and STEELMAN concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State.", "Richard E. Jester, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DECARLOS MONTE MOSES\nNo. COA09-1468\n(Filed 20 July 2010)\n1. Constitutional Law\u2014 right to counsel \u2014 defendant initiated contact \u2014 motion to suppress statement\nThe trial court did not err in a robbery and assault case by denying defendant\u2019s motion to suppress his statement to a police officer because defendant initiated contact with the officer after he had asserted his Miranda right to counsel.\n2. Evidence\u2014 striking a witness\u2019s testimony \u2014 failure to raise constitutional issues at trial \u2014 no prejudice\nThe trial court did not err in a robbery and assault case by not striking a witness\u2019s testimony upon his refusal to answer further questions or submit himself to cross-examination. Defendant did not raise any constitutional objections to the witness\u2019s testimony at trial and failed to make a motion to strike the witness\u2019s entire testimony. Even assuming arguendo, that the trial court erred in failing to strike the State\u2019s final question, defendant failed to show prejudice.\n3. Appeal and Error\u2014 preservation of issues \u2014 sufficiency of the evidence \u2014 failure to move to dismiss\nDefendant\u2019s argument that there was insufficient evidence to support the charges of robbery or conspiracy to commit robbery was not preserved for appellate review where defendant\u2019s trial counsel did not move to dismiss any charges against defendant at trial.\n4. Constitutional Law\u2014 effective assistance of counsel\u2014 motion to dismiss \u2014 no reasonable probability of different outcome\nDefendant did not receive ineffective assistance of counsel in a robbery and assault case where his trial counsel did not move to dismiss for insufficient evidence of the charges against him. There was no reasonable probability that defense counsel\u2019s failure to move for dismissal resulted in a different outcome.\n5. Sentencing\u2014 robbery and possession of stolen goods\u2014 proceeds of the same robbery \u2014 error to sentence for both convictions\nThe trial court erred by sentencing defendant for both robbery and possession of stolen property as the Legislature did not intend to subject a defendant to multiple punishments for both charges where the stolen goods possessed were the proceeds of the same robbery.\nAppeal by defendant from judgments entered 19 March 2009 by Judge J.B. Allen, Jr. in Durham County Superior Court. Heard in the Court of Appeals 11 May 2010.\nAttorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State.\nRichard E. Jester, for defendant-appellant." }, "file_name": "0629-01", "first_page_order": 657, "last_page_order": 668 }