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  "name": "STATE OF NORTH CAROLINA v. CHARLES ALFRED HURST",
  "name_abbreviation": "State v. Hurst",
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        "text": "BECTON, Judge.\nFrom judgments imposing prison sentences totaling twenty years following his conviction of robbery with a dangerous weapon and felonious larceny, defendant, Charles Alfred Hurst, appeals.\nI\nOn 6 October 1984, Ms. Shields, who was shopping in Fay-etteville, North Carolina, returned to her car and locked two grocery bags and her pocketbook, containing personal property valued at more than $400.00, in the trunk. She then unlocked the driver\u2019s door to enter the car, but she felt someone behind her. A young man told her to move over. She screamed, and the man pointed a gun at her and threatened to shoot if she screamed again. She asked the man to let her go, and another man standing in front of the car said, \u201cLet her go.\u201d She slid out of the car, with the car keys in her hand, screamed and fled, but the man with the gun took the keys from her hand before she got away. He then drove the car away.\nThe next day, Ms. Shields\u2019 abandoned car was discovered by the police. In the glove compartment, there was a wallet containing a high school identification card with the defendant\u2019s name and picture on it. On 8 October 1984, defendant was positively identified by Ms. Shields in a photographic line-up.\nTwo members of the Fayetteville Police Department went to defendant\u2019s high school and picked him up. They took defendant to the Law Enforcement Center, arrested him, and read him his Miranda rights. Defendant waived his right to remain silent and described to the officers the events of 6 October 1984 substantially in accordance with Ms. Shields\u2019 account. He named his two accomplices and said that he went riding around town. He also said that he had thrown Ms. Shields\u2019 pocketbook into a trash can at his school. Defendant took the officers to the trash can, but the contents had been emptied into a dumpster. Defendant helped to search the dumpster; they found only a check and some other papers belonging to Ms. Shields. After broadcasting over the high school\u2019s public announcement system a request for assistance in retrieving the pocketbook, the officers were contacted by a student who took them to her home where she had Ms. Shields\u2019 pocketbook. Along the way, defendant directed the officers to a friend\u2019s apartment where he retrieved Ms. Shields\u2019 car keys.\nThe officers took defendant back to the Law Enforcement Center, read him his rights again, and obtained another waiver. The defendant then gave a recorded account of the incidents of 6 October 1984. One of the officers later recovered the pistol used by defendant.\nAt trial, defendant\u2019s recorded statement was played, over objection, for the jury. The defendant testified that he was high on marijuana on the morning of 6 October 1984 and that he did not remember what happened that day until he \u201cwoke up\u201d driving the car. He testified that his account of the day\u2019s events was a result of what the officers and his friends had told him.\nThe jury returned a verdict of guilty on both the robbery with a firearm and the felonious larceny counts. After a sentencing hearing at which the court found aggravating and mitigating factors, the court imposed a sentence greater than the presumptive term for the offenses.\nII\nDefendant presents ten arguments on appeal. In brief, he asserts that the trial court erred in (1) failing to conduct a full hearing upon defendant\u2019s request for the appointment of new trial counsel; (2) admitting a tape recording and transcript without proper authentication; (3) failing to grant a mistrial; (4) failing to dismiss the felonious larceny charge at the close of the evidence; (5) failing to instruct the jury on the defense of voluntary intoxication; (6) failing to strike portions of the prosecutor\u2019s closing arguments; (7) finding as an aggravating factor that defendant induced others to participate in the crime; (8) failing to find as a mitigating factor that defendant aided in the apprehension of another felon; and (9) failing to find as a mitigating factor that defendant voluntarily acknowledged wrongdoing at an early stage in the criminal process. Defendant\u2019s final argument is that this Court should arrest judgment on the felonious larceny conviction because he cannot be punished for both felonious larceny and armed robbery on the facts of this case. We agree with defendant on his final argument. Therefore, judgment on the felonious larceny conviction is arrested. Because (a) the two convictions were consolidated for judgment and sentencing, (b) a sentence greater than the presumptive term was imposed, and (c) the sentencing court did not indicate to which offense the additional years were added, the case is remanded for resentencing.\nIII\nDefendant argues that when he moved the court to appoint substitute counsel, the court should have conducted a full hearing to determine whether substitution of counsel was appropriate. Defendant twice requested substitute counsel, the first time as follows:\nThe Defendant: Your Honor, I would like to make a motion, please, that I would like to have another attorney assigned to me because I don\u2019t believe this attorney right here is acting \u2014 I don\u2019t believe he is protecting me \u2014I mean, defendant me in my best interest and everything. He shows no respect to my family. When he talks to me, he [is] always looking at me like I\u2019m crazy. I do not wish to have this attorney and I wish the State to please give me another attorney.\nCOURT: Is there anything else you would like to say to the Court before I call the jury back in?\nThe Defendant: No, sir.\nCOURT: All right. Motion denied.\nSome time later in the trial, defendant again requested new counsel:\nThe Defendant: Your Honor, I would like to say something. I know Mr. Britt, he is trying his best and everything. But I still wish that I could get another attorney because that tape right there, I don\u2019t believe it should have been admissible evidence because I done and talked to other lawyers and they said it shouldn\u2019t be admissible evidence because I was interrogated. I don\u2019t see why you keep \u2014 every time this man say something, you keep denying everything and saying sustained. The man ain\u2019t going to get to do his job. ...\nAn indigent defendant\u2019s right to competent counsel at trial does not encompass the right to choose a specific attorney. State v. Thacker, 301 N.C. 348, 271 S.E. 2d 252 (1980). Mere dissatisfaction with appointed counsel\u2019s services is insufficient to trigger the right to substitute counsel. State v. Sweezy, 291 N.C. 366, 230 S.E. 2d 524 (1976); State v. Robinson, 290 N.C. 56, 224 S.E. 2d 174 (1976). In order to invoke this right, \u201cdefendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict.\u201d Sweezy, 291 N.C. at 372, 230 S.E. 2d at 528-29 (citations omitted) (quoting United States v. Young, 482 F. 2d 993 (5th Cir. 1973)). Defendant\u2019s right is based on the Sixth Amendment guaranty of effective assistance of counsel, but the defendant must raise an apparently substantial complaint regarding the representation provided. The trial court is required to assure that original counsel is reasonably competent and able to render effective assistance. Thacker, 301 N.C. at 352, 271 S.E. 2d at 255.\nAlthough generally it is better practice to inquire into defendant\u2019s objections the first time defendant raises serious and substantial complaints, the trial court is not required to conduct a detailed hearing to resolve the issue. Thacker, Sweezy. In the case at bar, defendant raised no issue of conflict of interest or irreconcilable conflict. He noted no instances of incompetency, lack of diligence, or even questionable judgment. See State v. Poole, 305 N.C. 308, 289 S.E. 2d 335 (1982) (defendant raised issue of counsel\u2019s competence). It appears from defendant\u2019s second motion that he believed appointed counsel was \u201ctrying his best.\u201d Defendant was understandably dismayed at the introduction of the taped statement, but, as the trial court explained, the defense attorney was doing all that he could for defendant.\nEach case in which effective assistance of counsel is questioned must be examined individually, and the decision to appoint substitute counsel is committed to the sound discretion of the trial court. State v. Hutchins, 303 N.C. 321, 336, 279 S.E. 2d 788, 798 (1981); State v. Bowen, 56 N.C. App. 210, 287 S.E. 2d 458, disc. rev. denied and appeal dismissed, 305 N.C. 588, 292 S.E. 2d 7 (1982). We hold that it was not error for the trial court in the case at bar to consider defendant\u2019s request without a formal hearing. Thacker, Bowen. No abuse of discretion or ineffective assistance of counsel has been shown.\nIV\nDefendant\u2019s second and third arguments, which he presents together, are that the trial court erred in admitting into evidence a taped conversation and a transcript of the conversation without proper authentication and that, therefore, the trial court erred in failing to grant defendant\u2019s motion for a mistrial based on the admission of that evidence.\nEven assuming the State failed to establish that the defendant\u2019s entire statement was recorded and that no unexplained changes, additions or deletions had been made \u2014 as is required under State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971) \u2014 and even though no witness for the State testified that the recorded statement was accurate or complete, the defendant has failed to demonstrate the prejudicial effect of the admission of the challenged evidence. There was overwhelming evidence that the defendant committed the crime as charged. For example, one officer\u2019s testimony recounted defendant\u2019s previous in-custody interview in which defendant described how he and his friends committed the alleged crime. The victim positively identified the defendant as her assailant. The defendant\u2019s wallet was found in the victim\u2019s abandoned car one day after the crime, and defendant took the police officers to the stolen pocketbook and keys. There was no alibi defense in this case as there was in State v. Toomer, 311 N.C. 183, 316 S.E. 2d 66 (1984). And there were no long, suspicious \u201cgaps\u201d or inaudible portions of the tape as there were in State v. Shook, 55 N.C. App. 364, 285 S.E. 2d 328 (1982).\nThe taped statement and the transcript were cumulative. We cannot say there is a reasonable possibility that had they been excluded, the jury would have reached a different conclusion. Toomer.\nFor similar reasons, the trial court did not err in denying defendant\u2019s motion for a mistrial. He has failed to show that the admission of this evidence resulted in \u201csubstantial and irreparable prejudice\u201d to his defense or made it impossible for the jury to render an impartial verdict. N.C. Gen. Stat. Sec. 15A-1061 (1983); see State v. Blackstock, 314 N.C. 232, 333 S.E. 2d 245 (1985).\nV\nDefendant next contends that the trial court erroneously failed to dismiss the charge of felonious larceny at the close of all the evidence. In light of our decision in Part IX, infra, it is not necessary to address this issue.\nVI\nDefendant argues that the court erred in refusing to instruct the jury on the defense of voluntary intoxication. The trial court is required to instruct the jury on voluntary intoxication only if the defendant presents evidence that he or she was \u201cso completely intoxicated as to be utterly unable to form the specific intent necessary at the time the crime was committed.\u201d State v. Williams, 308 N.C. 47, 71, 301 S.E. 2d 335, 350 (citations omitted), cert, denied, 464 U.S. 865, 78 L.Ed. 2d 177, 104 S.Ct. 202 (1983). In the case at bar, the specific intent essential to convict of robbery is the intent to permanently deprive the owner of his or her goods and appropriate them to the taker\u2019s use. State v. Norris, 264 N.C. 470, 141 S.E. 2d 869 (1965).\nThe only evidence supporting defendant\u2019s claim of intoxication was his own testimony that he and his friends \u201cgot high\u201d at about seven o\u2019clock on the morning of 6 October 1984. According to defendant, he had \u201cabout two or three joints\u201d of marijuana and \u201ca couple of nods\u201d of cocaine. He claimed that he did not remember the events of the latter part of the day until he \u201cwoke up\u201d as he was driving Ms. Shields\u2019 car at eight o\u2019clock that evening. He testified that the events he recounted to the officers during the two separate interviews were suggested to him by friends and by the officers.\nThis evidence is insufficient to require an instruction on voluntary intoxication. The crime was committed nearly nine hours after defendant \u201cgot high\u201d \u2014 according to Ms. Shields, the incident occurred in the late afternoon, at about four o\u2019clock. Moreover, there was no evidence regarding the effect the drugs had on defendant\u2019s ability to reason at the time of the crime. See State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976). He testified only to a subsequent loss of memory. There was, in short, no evidence that he was so intoxicated that he could not form the specific intent necessary at the time the crime was committed.\nVII\nDefendant next argues that the trial court committed reversible error in failing to strike the following italicized portions of the district attorney\u2019s closing argument:\nIf you were me, what else would you say to you? He did it. I proved it. You go out there, talk about it and come back in here and find him guilty, regardless of the fact that he is seventeen, regardless of the fact that Mr. Britt says he\u2019s going to serve at least fourteen years in prison.\nYou promised me, each of you, that you would follow the law as the Judge gives it to you.\nYou saw his attitude, his demeanor. You let him go, and he\u2019ll he right hack, hopefully, only on an armed robbery charge \u2014\nMr. Britt: Objection.\nMr. AMMONS: Hopefully, on an armed robbery charge and not a murder charge.\nMr. BRITT: Objection. Move that all that be stricken and ordered disregarded.\nCOURT: Overruled.\nMr. AMMONS: Mrs. Shields was just a slight pressure on his index finger from being shot.\nAll I\u2019m asking you to do is what you told me you would do. Do your job. If you\u2019re convinced, and I contend you should be, go out there, talk about it and come back in here and say, Mr. Hurst, based on this evidence, overwhelming evidence, we find you guilty as charged.\nGenerally, wide latitude is allowed counsel during closing argument to the jury, and control of the scope of a prosecutor\u2019s remarks is left in the discretion of the trial court. We will not review the court\u2019s determination absent \u201csuch gross impropriety in the argument as would be likely to influence the verdict of the jury.\u201d State v. Covington, 290 N.C. 313, 328, 226 S.E. 2d 629, 640 (1976) (citations omitted). Nonetheless, the prosecutor may not place before the jury \u201cincompetent and prejudicial matter\u201d or arguments not supported by the evidence. Id.\nIt is improper for a prosecutor to attempt to induce a jury to convict a defendant in order to prevent him from committing murder in the future. In the case at bar, the State argues that the prosecutor simply made the permissible argument that armed robbery is a crime next in severity only to murder. See State v. Brown, 39 N.C. App. 548, 251 S.E. 2d 706, cert. denied, 297 N.C. 302, 254 S.E. 2d 923 (1979). The remark objected to by defendant is susceptible to the interpretation that the jury should convict defendant to prevent him from returning to commit murder. Thus, it is improper. Nevertheless, we hold that on the evidence presented in this case the prosecutor\u2019s improper remark was not reversibly prejudicial to defendant. See Covington. Even though the trial court did not instruct the jury to disregard the improper remark, it was not so grossly improper that it was \u201clikely to influence the verdict.\u201d We do not condone the practice of extending closing remarks beyond fair bounds, but the prosecutor\u2019s improper remark was harmless in this case. See State v. Miller, 288 N.C. 582, 601, 220 S.E. 2d 326, 338-39 (1975).\nVIII\nDefendant\u2019s next three arguments relate to the sentencing phase of the trial. He asserts that errors in finding an aggravating factor and in failing to find certain mitigating factors entitle him to a new sentencing hearing under State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983). After careful consideration of the facts in this case, the relevant law, and defendant\u2019s arguments, we conclude that the trial court did not err in sentencing defendant.\nIX\nDefendant\u2019s final argument is that this Court should arrest judgment on the felonious larceny conviction because, under the facts of this case, felonious larceny merges with the greater felony of armed robbery. Although we do not hold that f\u00e9lonious larceny of goods worth over $400 merges into the offense of armed robbery, we agree with defendant that judgment on the felonious larceny conviction must be arrested. The basis on our decision is that defendant\u2019s right to be free from double jeopardy under Article I, Section 19 of the North Carolina Constitution and Amendments V and XIV to the United States Constitution was violated by his punishment under two statutes which the legislature intended to be mutually exclusive under facts such as those in the case at bar.\nThe issue before us is whether a single series of acts may support convictions under both N.C. Gen. Stat. Secs. 14-87 (armed robbery) and 14-72 (felonious larceny) (1981) when there has been only one taking from one victim at one time. We hold that it cannot.\nThe fundamental constitutional prohibition against placing a person twice in jeopardy for the same criminal offense is \u201cdeeply imbedded in our jurisprudence.\u201d State v. Hill, 287 N.C. 207, 214, 214 S.E. 2d 67, 72 (1975) (citations omitted). \u201cThe Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.\u201d State v. Gardner, 315 N.C. 444, 340 S.E. 2d 701 (1986) (citations omitted); Hill.\nIn the instant case, we are concerned with the third category. Recognizing the distinction noted in Gardner between single-prosecution and successive prosecution situations, we proceed to analyze this case under the single-prosecution standards as set forth in Gardner:\nWhere multiple punishment is involved, the Double Jeopardy Clause acts as a restraint on the prosecutor and the courts, not the legislature. Brown v. Ohio, 432 U.S. 161, 53 L.Ed. 2d 187 (1977). The Double Jeopardy Clauses of both the United States and North Carolina Constitutions prohibit a court from imposing more punishment than that intended by the legislature. \u201c[T]he question whether punishments imposed by a court after a defendant\u2019s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.\u201d Whalen v. United States, 445 U.S. 684, 688, 63 L.Ed. 2d 715, 721 (1980).\n315 N.C. at 452-53, 340 S.E. 2d at 707-08; Missouri v. Hunter, 459 U.S. 359, 74 L.Ed. 2d 535, 103 S.Ct. 673 (1983); Albernaz v. United States, 450 U.S. 333, 67 L.Ed. 2d 275, 101 S.Ct. 1137 (1981). \u201cThe Double Jeopardy Clause plays only a limited role in deciding whether cumulative punishments may be imposed under different statutes at a single criminal proceeding \u2014 that role being only to prevent the sentencing court from prescribing greater punishments than the legislature intended.\u201d Gardner, 315 N.C. at 460, 340 S.E. 2d at 712. Thus, we must determine whether the legislature intended to allow multiple punishment in situations such as the one at bar. If it did not, then the imposition of multiple punishment by the trial court was erroneous.\nA\nWe consider first whether there were one or two criminal \u201ctakings.\u201d Defendant was charged in a single indictment with two offenses.\nIn the first paragraph of the indictment he was charged with armed robbery of the victim\u2019s purse and its contents (including $350 in cash), a raincoat, a pair of shoes, a brass belt buckle, pantyhose, credit card receipts, an umbrella, a shoe bag and its contents, \u201can assortment of food items,\u201d and four car keys \u2014all valued at $1,057.25. In the second paragraph he was charged with felonious larceny of the car.\nIt is undisputed that defendant held a gun to the victim\u2019s head and that the victim ran away from the car. The items set forth in the first paragraph of the indictment apparently were in the trunk of the car. We believe that defendant\u2019s act of taking control of the car and driving the car away from the victim constituted a single act of taking the car and the items within the car. This.was not one \u201cseries of events\u201d or one \u201ccourse of conduct.\u201d Rather, it was a single act whereby defendant took a car and its contents. Although a course of conduct may be divided into units of activity \u2014 a robbery, a burglary, a larceny \u2014 in this case, the act of taking the car cannot be separated from the act of taking the items in the trunk.\nDepartmentalizing criminal conduct into component parts yielding plural liability is the greatest threat in attempting to avoid multiple punishment, and it is therefore pertinent and indispensable first to determine whether or not one or more punishable transactions legally occurred in the course of a defendant\u2019s criminal conduct.\nComment, Criminal Law \u2014 Multiple Punishment and the Same Evidence Rule, 8 Wake Forest L. Rev. 243, 243 (1972).\nInstructive in this regard is State v. Fambrough, 28 N.C. App. 214, 220 S.E. 2d 370 (1975). The defendant and another man entered a motel. The defendant held a knife to an employee\u2019s throat, and he took $79 along with a pistol from the victim. Defendant was charged in one indictment with armed robbery of money, and in the other he was charged with armed robbery of a pistol. He was convicted of both. This Court said:\n[W]e find that only one robbery occurred, in which two kinds of property were taken, money and a pistol. The two indictments charged separate offenses. Clearly both indictments and the evidence relate to what occurred on the same occasion. The same evidence would support a conviction on each charge. Under the \u201csame evidence test,\u201d this amounts to double jeopardy. State v. Ballard, 280 N.C. 479, 186 S.E. 2d 372 (1972).\nId. at 214-15, 220 S.E. 2d at 371.\nThus, when several items are taken from one person at the same time, there is only one criminal taking. And, absent specific statutory authorization to the contrary, the prosecutor may not divide property taken at one time from one victim in one place into separate items or units for purposes of prosecuting defendant for separate takings. State v. Boykin, 78 N.C. App. 572, 337 S.E. 2d 678 (1985) (When the legislature made larceny of a firearm a felony, it did not intend to allow separate punishments \u2014 or \u201cunits of prosecution\u201d \u2014 for each firearm taken when several firearms were taken at once from the same place.). Thus, if defendant\u2019s punishments for both felonious larceny and armed robbery are to be upheld, it must be because the legislature intended to allow punishment under both G.S. Secs. 14-72 and -87 for a single taking.\nB\nIn State v. Gardner, the Supreme Court considered whether the legislature intended to allow multiple punishment for (1) breaking or entering and (2) felonious larceny pursuant to a breaking and entering. The Court examined several factors to determine legislative intent. The Court explained that, in a single prosecution analysis, a conclusion that two offenses \u201cmerge\u201d or satisfy the \u201clesser-included-offense\u201d standard is simply one of the several tools to assist in determining legislative intent. 315 N.C. at 454-55, 340 S.E. 2d at 708-09. We now apply the factors from Gardner to assess legislative intent regarding the offenses involved in the case at bar.\nFirst, the Gardner Court noted that the two offenses violated \u201ctwo separate and distinct social norms, the breaking into or entering the property of another, and the stealing and carrying away of another\u2019s property.\u201d 315 N.C. at 461, 340 S.E. 2d at 712. This stands in contrast to the offenses in the case at bar. Armed robbery and larceny both involve the violation of the same social norm: stealing and carrying away the property of another. And the taking of property worth over $400 does not implicate a separate and distinct social norm \u2014 it simply involves a more egregious violation of the same norm. Of course, armed robbery involves the violation of an additional norm: the use or threatened use of a weapon on another person. But to punish for armed robbery ipso facto punishes for violating the social norm against stealing and carrying away another\u2019s property.\nThe Gardner Court also analyzed the legislative histories of breaking and entering and larceny. There is no need to recount the histories of the offenses involved in the case sub judice, as they are found in other cases. See, e.g., Gardner (larceny); State v. Chase, 231 N.C. 589, 58 S.E. 2d 364 (1950) (armed robbery). It is sufficient for our purposes to note that when the legislature enacted G.S. Secs. 14-72 and -87, it did not intend to change the common law offenses of larceny and robbery. It simply intended to codify the common law and to provide for more severe punishment under certain circumstances. See Chase. As explained below, under the common law (at least until 1980) larceny was a lesser included offense of robbery. That is, a defendant could be punished for only one of these offenses if he or she committed only a single criminal act. When the legislature altered the punishment for these offenses in specific situations, it did not intend to change the well-established prohibition against punishment for both larceny and armed robbery of the same property from a single victim. Cf. Boykin (When the legislature made larceny of a firearm a felony, it did not intend to allow separate prosecutions for each firearm taken when several were taken at one time.).\nIn Gardner, the Supreme Court\u2019s decision that the two offenses involved there were intended to be separately punished was based partly on the juxtaposition of the offenses within the statutory scheme. 315 N.C. at 462, 340 S.E. 2d at 713. The Court noted that breaking or entering was placed under Article 14 of Subchapter IV, entitled \u201cOffenses Against the Habitation and Other Buildings\u201d while larceny was located under Article 16 of Subchapter V, entitled \u201cOffenses Against Property.\u201d Applying this reasoning to the case at bar, we note that armed robbery was placed under Article 17 within the same subchapter as larceny, Subchapter V, entitled \u201cOffenses Against Property.\u201d\nThe Court in Gardner also considered prior judicial treatment of the offenses:\n[T]his Court has uniformly and frequently held, from as early as the turn of the century, that breaking and/or entering and larceny are separate and distinct crimes. . . . Our appellate courts have also sustained convictions for both breaking or entering and felony larceny pursuant to breaking or entering in a single trial. ... It would appear that we have also approved multiple punishments for both offenses. See State v. Morgan, 265 N.C. 597, 144 S.E. 2d 633 (1965), overruled on other grounds, 275 N.C. 439, 168 S.E. 2d 401 (1969). These many years of uniform construction have been acquiesced in by our legislature. Had conviction and punishment of both crimes in a single trial not been intended by our legislature, it could have addressed the matter during the course of these many years.\n315 N.C. at 462-63, 340 S.E. 2d at 713 (citations omitted).\nUnfortunately, we are unable to demonstrate uniform construction of the offenses involved in this case. There appears to be a conflict between two lines of North Carolina Supreme Court decisions on whether larceny is a lesser included offense of armed robbery. On one hand, the most entrenched and lengthy series of cases stands for the principle that larceny is a lesser included offense of common law robbery, and that both are lesser included offenses of armed robbery. Of course, if the offenses committed are separate in time, separate in place, or directed at different victims, the defendant may be punished for each.\nOn the other hand, three recent Supreme Court decisions, using a familiar version of the successive-prosecution \u201csame evidence\u201d test (whether each offense requires proof of an element that the other does not), listed the elements of larceny and armed robbery and concluded that the offenses are separate and distinct, rather than concluding that the former is a lesser included offense of the latter. State v. Murray, 310 N.C. 541, 548-49, 313 S.E. 2d 523, 529 (1984); State v. Beaty, 306 N.C. 491, 500-01, 293 S.E. 2d 760, 766-67 (1982); State v. Revelle, 301 N.C. 153, 163, 270 S.E. 2d 476, 482 (1980).\nIn these three opinions, however, the Court did not attempt to reconcile prior cases which uniformly held that larceny is a lesser included offense of armed robbery. And in only one of these cases, Beaty, did the Court suggest which element of larceny is not found in armed robbery:\nFor proof of armed robbery it is necessary to show the use or threatened use of a weapon but unnecessary to show asportation. For proof of larceny it is necessary to show asportation but unnecessary to show the use or threatened use of a weapon.\n306 N.C. at 501, 293 S.E. 2d at 767 (emphasis added). As far as we can discern, however, asportation (carrying away money or property) was an element of larceny even during the decades when the Supreme Court held that larceny was a lesser included offense of armed robbery. Indeed, it is difficult to understand how the element of asportation now could be the distinctive feature of larceny that makes it separate from, rather than included within, armed robbery. See State v. Bobbitt, 29 N.C. App. 155, 157, 223 S.E. 2d 398, 400 (1976) (\u201cOf course, the taking and carrying away is an essential element of the crime of robbery.\u201d). More likely, asportation had always been implicitly subsumed within the armed robbery requirement that there be \u201can unlawful taking.\u201d\nMore importantly, it is not clear that the Supreme Court intended to allow multiple punishment for larceny and armed robbery based on the same taking. In Revelle, the defendant had been charged with and convicted of felonious larceny, armed robbery, burglary, and rape. Although they all occurred in the same series of events, each crime was distinct in time and place. For example, the armed robbery was committed by taking property from two victims at gunpoint in their mobile home, and the felonious larceny occurred after the defendant had left the mobile home, when he took an automobile belonging to one of the victims. The Court held that the four felonies were \u201cfactually distinct and independent crimes in this case.\u201d 301 N.C. at 163, 270 S.E. 2d at 482.\nIn Beaty, the Court considered the situation of \u201ca defendant charged with two counts of armed robbery resulting from the assault of a lone employee with property taken from both the employee and the business.\u201d 306 N.C. at 499, 293 S.E. 2d at 765-66. The Court arrested judgment on one of the two robbery convictions, finding the \u201ccontrolling factor\u201d to be \u201cthe existence of a single assault.\u201d Id. The Court held that the defendant could have been convicted of armed robbery of \u201ceither the attendant or the store but not both.\u201d The Court then stated that the \u201cdefendant could also have been convicted of a larceny from either [the attendant] or the ABC store had he been so charged.\u201d Id. at 500, 293 S.E. 2d at 766. It is not clear whether the Court\u2019s dicta means that the defendant could have been convicted of larceny of the attendant and armed robbery of the attendant, or whether the two convictions would have to relate to separate victims.\nIn Murray, the defendant had beaten and robbed the victim and had then stolen the victim\u2019s car. Although the Supreme Court compared armed robbery and larceny and concluded that the latter was not a lesser included offense of the former, it is clear from the facts of the case that even if larceny were included within armed robbery, the defendant committed one distinct act of robbery and then one distinct act of larceny.\nNone of the cases discussed above based the distinction between felonious larceny and armed robbery on the $400 minimum value requirement. It may be argued that, although simple larceny and larceny from the person are lesser included offenses of armed robbery, felonious larceny based on the taking of goods worth over $400 is a separate offense that does not merge with armed robbery. See State v. Henry, 57 N.C. App. 168, 169-70, 290 S.E. 2d 775, 776, disc. rev. denied, 306 N.C. 561, 294 S.E. 2d 226 (1982) (dicta); see also Smith v. Cox, 435 F. 2d 453 (4th Cir. 1970), vacated on other grounds, 404 U.S. 53, 30 L.Ed. 2d 209, 92 S.Ct. 174 (1971). But see State v. Chapman, 49 N.C. App. 103, 270 S.E. 2d 524 (1980) (Defendant was charged with armed robbery of a bag containing $5,165.73 in cash; the Court held that in light of evidence that defendant did not use force before or concurrently with the taking, the trial court should have instructed on the lesser included offense of felonious larceny.).\nEven if we assume that either asportation or the $400 minimum value element of the felonious larceny charge and the weapon requirement for armed robbery make the two offenses separate and distinct, this Court must determine, following Gardner, whether the legislature has acquiesced in a consistent and uniform construction of the two crimes as separate offenses, thereby implicitly authorizing punishment for both offenses based on a single taking. Clearly, the legislature has not so acquiesced.\nThe crucial inquiry \u2014 whether the legislature intended to allow punishment for both offenses for a single taking from a single victim at one time \u2014 was not resolved in Murray, Beaty, or Revelle, and we have found no cases in which multiple punishment has been imposed under G.S. Secs. 14-72 and -87 for a single taking. The Gardner factors, as applied to the case at bar, strongly suggest that the legislature did not intend to allow multiple punishment under the circumstances of this case.\nC\nWe believe the case at bar is similar to State v. McGill, 296 N.C. 564, 251 S.E. 2d 616 (1979). In McGill, defendant was charged with both possession of more than one ounce of marijuana and possession with intent to sell or deliver marijuana. The Supreme Court rejected defendant\u2019s argument that felonious possession was a lesser included offense of possession with intent to sell or deliver.\nTo prove the offense of possession of over one ounce of marijuana, the State must show possession and that the amount possessed was greater than one ounce. To prove the offense of possession with intent to sell or deliver marijuana, the State must show possession of any amount of marijuana and that the person possessing the substance intended to sell or deliver it. Thus, the two crimes each contain one element that is not necessary for proof of the other crime. One is not a lesser included offense of the other.\nThis does not mean, however, that a defendant can be punished for both offenses because of possession of the same contraband. Multiple punishment is one facet of the prohibition against double jeopardy. See State v. Irick, 291 N.C. 480, 231 S.E. 2d 833 (1977). That rule applies \u201c[w]here two or more offenses of the same nature are by statute carved out of the same transaction and are properly the subject of a single investigation.\u201d State v. Midgett, 214 N.C. 107, 110, 198 S.E. 2d 613, 614 (1938) (quoting Dowdy v. State, 158 Tenn. 364, 366, 13 S.W. 2d 794, 794 (1929)). See also In re Powell, 241 N.C. 288, 84 S.E. 2d 906 (1954).\nId. at 567-68, 251 S.E. 2d at 619; accord State v. Pagan, 64 N.C. App. 295, 307 S.E. 2d 381 (1983). This principle also applies to the crimes of larceny and receiving stolen property when they are applied to the same property. State v. Meshaw, 246 N.C. 205, 98 S.E. 2d 13 (1957); In re Powell, 241 N.C. 288, 84 S.E. 2d 906 (1954).\nWe conclude that larceny of goods worth over $400 and armed robbery of the same goods from the same person at one time are mutually exclusive offenses; that is, if a defendant is punished for one, he cannot be punished for the other based on the same taking. Cf McGill. Nothing in the statutes suggests a contrary legislative intent. Neither statute provides that armed robbery of goods worth over $400 is punishable under both statutes. Compare Missouri v. Hunter, 459 U.S. 359, 74 L.Ed. 2d 535, 103 S.Ct. 673 (1983).\nWere we to rule otherwise, every armed robbery in which property worth over $400 were taken also would constitute felonious larceny. For example, if A uses a weapon to take B\u2019s wallet, and the wallet contains over $400, A could be punished for two crimes: armed robbery of the wallet and felonious larceny of the money. Similarly, as in the case at bar, if A uses a weapon to steal a car from B, and an item of B\u2019s personal property is in the car, A would commit two offenses: armed robbery of the item in the car and felonious larceny of the car (usually worth over $400). And what if the car were equipped with a ski rack or contained a removable cassette deck, seat covers, or a spare tire? Would the defendant be subject to punishment for both felonious larceny of a car and armed robbery of a component part of the car to be defined by the prosecutor?\nThe State would have us establish by judicial fiat two degrees of armed robbery: (1) ordinary armed robbery (if the goods taken are worth $400 or less), and (2) aggravated armed robbery, that is, armed robbery plus felonious larceny (if the goods taken are worth over $400 and any other item is taken, even incidentally). We do not interpret this to be the will of the legislature. Courts should avoid interpreting criminal statutes to increase penalties absent clear legislative intent. See Albernaz v. United States, 450 U.S. 333, 67 L.Ed. 2d 275, 101 S.Ct. 1137 (1981). If the legislature wishes to increase the penalty for armed robbery when goods worth over $400 are taken, it is free to do so.\nIn sum, the defendant cannot be punished for felonious larceny and armed robbery based on a single taking from one person at one time. Judgment is arrested on the felonious larceny conviction. See Hatcher.\nX\nThe armed robbery and felonious larceny convictions were consolidated for judgment and sentencing. The presumptive sentence for armed robbery is fourteen years, G.S. Sec. 14-87(d), and for felonious larceny, three years, G.S. Sec. 14-72(a) (Class H felony); N.C. Gen. Stat. Sec. 15A-1340.4(f)(6) (1983). Because defendant\u2019s twenty-year sentence exceeded the total of the presumptive terms, the court was required to make specific findings in aggravation and mitigation. G.S. Sec. 15A-1340.4(b). The court did not indicate, however, whether the additional years were added for the armed robbery or the felonious larceny conviction, or both. Because one of the aggravating factors (defendant induced others to participate in the offense) might apply to either one or both convictions, the case must be remanded for resentencing. Cf State v. Miller, 316 N.C. 273, 341 S.E. 2d 531 (1986).\nFor the reasons set forth above, judgment is arrested on the felonious larceny conviction, the armed robbery conviction is upheld, and the case is remanded for resentencing.\nFelonious larceny \u2014 judgment arrested.\nArmed robbery \u2014no error.\nRemanded for resentencing.\nJudges Whichard and Parker concur.\n. Defendant was not charged with robbery of the victim\u2019s keys from her hand as an act separate from the taking of the other items. Some keys are listed in the indictment along with all the items from the trunk. We express no opinion on whether the taking of the keys may be viewed as separate from the taking of the car.\n. The Gardner Court\u2019s reliance on Morgan is severely criticized in the three-justice dissent. It appears that, for one thing, the issue of multiple punishment for the offenses was not squarely raised or addressed in Morgan.\n. See State v. Smith, 268 N.C. 167, 150 S.E. 2d 194 (1966); State v. Lawrence, 262 N.C. 162, 136 S.E. 2d 595 (1964); State v. Cody, 60 N.C. 197 (1864); see also State v. Henry, 57 N.C. App. 168, 290 S.E. 2d 775, disc. rev. denied, 806 N.C. 561, 294 S.E. 2d 226 (1982); State v. Reid, 55 N.C. App. 72, 284 S.E. 2d 519 (1981), disc. rev. denied, 305 N.C. 306, 290 S.E. 2d 707 (1982).\n. See State v. Porter, 303 N.C. 680, 281 S.E. 2d 377 (1981); State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399, appeal dismissed and cert. denied, 402 U.S. 1006, 29 L.Ed. 2d 428, 91 S.Ct. 2199 (1971); State v. Hatcher, 277 N.C. 380, 177 S.E. 2d 892 (1970); State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955); State v. Bell, 228 N.C. 659, 46 S.E. 2d 834 (1948); see also State v. Owens, 73 N.C. App. 631, 327 S.E. 2d 42, disc. rev. denied, 314 N.C. 120, 332 S.E. 2d 488 (1985).\n. See State v. Beaty, 306 N.C. 491, 293 S.E. 2d 760 (1982) (Armed robbery of a single store employee is one robbery, even if property is taken from both employee and store.); State v. Potter, 285 N.C. 238, 204 S.E. 2d 649 (1974) (Armed robbery of store\u2019s property from two clerks is one robbery.); State v. Johnson, 23 N.C. App. 52, 208 S.E. 2d 206, cert. denied, 286 N.C. 339, 210 S.E. 2d 59 (1974) (Armed robbery of two persons, at same time in same place, where property of each taken constitutes two robberies.); cf. State v. Richardson, 279 N.C. 621, 633, 185 S.E. 2d 102, 115 (1971) (Lake, J., concurring).\n. Another element of larceny \u2014 that the defendant intend to permanently deprive the owner of his or her property \u2014 is not listed as an essential element of armed robbery in these recent Supreme Court cases. But it is, of course, an essential element. Smith, 268 N.C. at 169, 150 S.E. 2d at 198. This lends credence to the view that the list of elements often used for armed robbery is not literally exhaustive and that asportation is in fact an element of armed robbery.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.",
      "James R. Parish for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLES ALFRED HURST\nNo. 8512SC854\n(Filed 15 July 1986)\n1. Constitutional Law \u00a7 46\u2014 appointed counsel \u2014 motions to replace \u2014denied without hearing \u2014 no error\nThe trial court did not err in a prosecution for armed robbery and felonious larceny by considering the indigent defendant\u2019s request for another counsel without a formal hearing where defendant raised no issue of conflict of interest or irreconcilable conflict; noted no instances of incompetency, lack of diligence, or questionable judgment; and apparently felt that his appointed counsel was \u201ctrying his best.\u201d\n2. Criminal Law \u00a7 70\u2014 tape recorded conversation \u2014admission not prejudicial error\nThere was no prejudicial error in a prosecution for armed robbery and larceny in the admission of a taped conversation and a transcript of that conversation without proper authentication or in the denial of defendant\u2019s motion for a mistrial based on the admission of that evidence where the tape and transcript were cumulative and there was overwhelming evidence that defendant had committed the crime as charged. N.C.G.S. \u00a7 15A-1061 (1983).\n3. Criminal Law \u00a7 6\u2014 voluntary intoxication \u2014 refusal to instruct \u2014 no error\nThe trial court did not err in a prosecution for armed robbery and larceny by refusing to instruct the jury on voluntary intoxication where the only evidence supporting defendant\u2019s claim of intoxication was his own testimony that he and his friends \u201cgot high\u201d about 7:00 a.m. on 6 August 1984; defendant claimed that he had had about two or three joints of marijuana and a \u201ccouple of nods\u201d of cocaine and did not remember events of the latter part of the day until he woke up driving the victim\u2019s car at 8:00 p.m.; defendant claimed the events he recounted to officers in two separate interviews were suggested to him by friends and officers; there was no evidence regarding the effect the drugs had on defendant\u2019s ability to reason at the time of the crime; and the crime was committed nearly nine hours after defendant got high.\n4. Criminal Law \u00a7 102.6\u2014 armed robbery \u2014 prosecutor\u2019s argument for conviction to prevent future murder by defendant \u2014 no prejudice\nThe trial court did not commit reversible error in a prosecution for armed robbery and larceny by failing to strike a prosecutor\u2019s argument that was susceptible to the interpretation that the jury should convict defendant to keep him from returning to commit murder where the remark was not so grossly improper that it was likely to influence the verdict.\n5. Constitutional Law \u00a7 34\u2014 armed robbery and felonious larceny \u2014 taking of car and items in trunk \u2014 double jeopardy\nA single series of acts may not support convictions for armed robbery and felonious larceny when there has been only one taking from one victim at one time; defendant\u2019s act of taking control of a car and driving the car away from the victim constituted the single act of taking the car and the items within the car. N.C.G.S. \u00a7 14-72, N.C.G.S. \u00a7 14-87. North Carolina Constitution Art. I, \u00a7 19, U.S. Constitution Amendments V and XIV.\n6. Criminal Law \u00a7 138.14\u2014 consolidated sentencing \u2014 one judgment arrested \u2014 remanded\nA case was remanded for resentencing where convictions for armed robbery and felonious larceny were consolidated for judgment and sentencing; judgment was arrested on the armed robbery conviction; defendant\u2019s twenty-year sentence exceeded the total of the presumptive terms; the court did not indicate whether the additional years were added for the armed robbery or the felonious larceny or both; and one of the aggravating factors could apply to either one or both convictions. N.C.G.S. \u00a7 15A-1340.4(b).\nAPPEAL by defendant from Farmer, Judge. Judgment entered 9 May 1985 in Superior Court, Cumberland County. Heard in the Court of Appeals 12 December 1985.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.\nJames R. Parish for defendant appellant."
  },
  "file_name": "0001-01",
  "first_page_order": 29,
  "last_page_order": 49
}
