{
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  "name": "STATE OF NORTH CAROLINA v. BOBBY BATES",
  "name_abbreviation": "State v. Bates",
  "decision_date": "1984-09-18",
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  "casebody": {
    "judges": [
      "Judges Arnold and Eagles concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BOBBY BATES"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nThe State\u2019s evidence tended to show that defendant and his father, a codefendant, drove to the house of the victim to discuss personal grievances. An argument ensued, and the victim retreated into his house to get a rifle. Defendant and his father followed the victim into the house. Defendant knocked the rifle out of the victim\u2019s hands and began beating him around the head with a spindle. Defendant\u2019s father then picked up the rifle. Defendant and his father left with the rifle and did not return it.\nDefendant contends the court erred in denying his motions to dismiss and to set aside the verdict as against the greater weight of the evidence. He argues that the evidence fails to reveal the requisite felonious intent at the time the taking occurred to deprive the owner permanently of his property, citing State v. Richardson, 308 N.C. 470, 474, 302 S.E. 2d 799, 802 (1983), where the Court stated: \u201cIt is well settled law that the defendant must have intended to permanently deprive the owner of his property at the time the taking occurred to be guilty of the offense of robbery.\" (Emphasis in original; citations omitted.)\nNo direct evidence established defendant\u2019s intent at the time of the taking to deprive the victim of his rifle permanently, and it is reasonable to infer that defendant did not have such intent at that time. However, \u201c[i]ntent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.\u201d State v. Bell, 285 N.C. 746, 750, 208 S.E. 2d 506, 508 (1974). The evidence showed that defendant and his father took the rifle by force, departed from the victim\u2019s premises with it in their possession, and never returned it. In passing on defendant\u2019s motions the court had to consider this evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. Bell, supra. So considered, this evidence permitted, but did not compel, the reasonable inference that defendant and his father intended at the time of the taking to deprive the victim of his rifle permanently. \u201cIt was for the jury to determine, under all the circumstances, defendant\u2019s ulterior criminal intent.\u201d Id. The court thus properly denied defendant\u2019s motions.\nDefendant contends the court erred in denying his motion \u201cto submit the offense of forcible trespass (N.C.G.S. 14-126) to the jury.\u201d It appears from the narration of the trial proceedings in the record that defendant requested an instruction on forcible trespass to real property under G.S. 14-126 as a lesser included offense of common law robbery.\nA lesser included offense must contain some of the elements of the greater offense, but cannot contain an element different from the greater offense. State v. Weaver, 306 N.C. 629, 635, 295 S.E. 2d 375, 379 (1982). Common law robbery is \u201c \u2018the taking, with intent to steal, of the personal property of another, from his person or in his presence, without his consent or against his will, by violence or intimidation.\u2019 \u201d State v. Lundsford, 229 N.C. 229, 231, 49 S.E. 2d 410, 412 (1948). G.S. 14-126, the statute on forcible trespass to real property, contains the different element of \u201centry into . . . lands and tenements.\u201d The statutory offense of forcible trespass to real property therefore cannot be a lesser included offense of common law robbery. Similarly, common law forcible trespass to real property by definition requires an unlawful invasion of or threat to premises possessed by another, and thus involves an element separate and distinct from those of common law robbery. See, e.g., State v. Ward, 46 N.C. 290 (1854); see generally Sharpe, Forcible Trespass to Real Property, 39 N.C.L. Rev. 121 (1961). The court thus properly declined to instruct on forcible trespass under G.S. 14-126.\nArguably, the court should have instructed on the common law misdemeanor of forcible trespass to personal property as a lesser included offense of common law robbery. See, e.g., State v. Sowls, 61 N.C. 151 (1867); State v. Pearman, 61 N.C. 371 (1867). See generally Sharpe, Forcible Trespass to Personal Property, 40 N.C.L. Rev. 252 (1962). Defendant\u2019s request for instructions appears, however, to have related only to the statutory offense of forcible trespass to real property established by G.S. 14-126. He did not request an instruction on forcible trespass to personalty or object to the failure to instruct thereon. He thus is precluded from assigning that omission as error. N.C. R. App. P. 10(b)(2).\nDefendant contends he was prejudiced by the order of the charges on the verdict form. The form began with the most serious charge and listed alternative verdicts in descending order of severity, contrary to defendant\u2019s request that the possible verdicts be listed in the opposite order. Defendant cites no authority in support of this contention and we know of none. This Court has previously rejected a similar argument. See State v. Wall, 9 N.C. App. 22, 24, 175 S.E. 2d 310, 311 (1970).\nNo error.\nJudges Arnold and Eagles concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General James Peeler Smith, for the State.",
      "Klass, Lohr, Philpott & Curry, by Philip B. Lohr, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BOBBY BATES\nNo. 8322SC1225\n(Filed 18 September 1984)\n1. Robbery \u00a7 4.2\u2014 intent to deprive owner of property \u2014 sufficiency of evidence\nIn a prosecution for common law robbery, there was no merit to defendant\u2019s contention that the evidence failed to reveal the requisite felonious intent at the time the taking occurred to deprive the owner permanently of his property, since the evidence showed that defendant and his father became involved in an argument with the victim who went into his house to get a rifle; defendant and his father followed the victim; defendant knocked the rifle out of the victim\u2019s hands and began beating him around the head with a spindle; defendant\u2019s father then picked up the rifle; and defendant and his father left with the rifle and did not return it.\n2. Robbery \u00a7 1; Trespass \u00a7 12\u2014 common law robbery \u2014 forcible trespass not lesser offense\nForcible trespass to real property under G.S. 14-126 is not a lesser included offense of common law robbery, and the trial court did not err in denying defendant\u2019s request for an instruction thereon.\n3. Criminal Law \u00a7 123\u2014 order of charges on verdict form \u2014no prejudice\nDefendant was not prejudiced by the order of the charges on the verdict form where the form began with the most serious charge and listed alternative verdicts in descending order of severity.\nAppeal by defendant from Morgan, Judge. Judgment entered 14 July 1983 in Superior Court, Davidson County. Heard in the Court of Appeals 23 August 1984.\nDefendant appeals from a judgment of imprisonment entered upon his conviction for common law robbery.\nAttorney General Edmisten, by Assistant Attorney General James Peeler Smith, for the State.\nKlass, Lohr, Philpott & Curry, by Philip B. Lohr, for defendant appellant."
  },
  "file_name": "0477-01",
  "first_page_order": 509,
  "last_page_order": 512
}