State v. Hull

NO. COA14-251

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

STATE OF NORTH CAROLINA

v. Guilford County
Nos. 12 CRS 77582-85
13 CRS 24290
12 CRS 77220-24
DELUNTA ALUNDUS HULL

and

SHARRELLE LYNN DAVIS

Appeal by defendants from judgments entered 6 August 2013

by Judge James M. Webb in Guilford County Superior Court. Heard

in the Court of Appeals 28 August 2014.

Roy Cooper, Attorney General, by Anne J. Brown and Richard
H. Bradford, Special Deputy Attorneys General, for the
State.

Staples Hughes, Appellate Defender, by Charlesena Elliott
Walker, Assistant Appellate Defender, for defendant-
appellant Hull.

Amanda S. Zimmer for defendant-appellant Davis.

STEELMAN, Judge.

Where there was evidence of all of the elements of the

charge of larceny from the person, the trial court did not err

in denying defendants’ motions to dismiss. The trial court did
 -2-
not commit plain error in its jury instructions on that charge.

Where defendant was sentenced from the presumptive range, the

trial court did not err by failing to make findings in

mitigation or aggravation, or in not sentencing defendant from

the mitigated range. Where the State presented evidence that

Stuart’s computer was in proximity to her and under her control,

the trial court did not err in declining to submit the lesser

charge of misdemeanor larceny to the jury.

I. Factual and Procedural Background

On 8 May 2012, Rashad Perry, Robert Hawkins, David

Williams, Gabrielle Stuart, Braielyn Peoples and Emory Matthews

were gathered at Hawkins’ apartment in Greensboro for “study and

fellowship” in preparation for exam week. Perry and Hawkins

stepped outside, and were approached by a man armed with a

handgun, who robbed them of their cellular telephones. Two more

people, Delunta Alandis Hull (Hull) and Sharrelle Lynn Davis

(Davis), then approached, and the five people – Perry, Hawkins,

Hull, Davis, and the gunman – entered Hawkins’ apartment.

Davis pulled Perry into the kitchen while Hull and the

gunman went through the apartment. Two laptop computers and

another cellular telephone were taken. One of the computers

belonged to Stuart.
 -3-
Prior to the time of the theft, Stuart had been working on

her physics homework. While studying, Stuart, along with

Peoples, Hawkins, Matthews, and Perry, was playing a computer

game called “Dance Central” on the television. Each would take

turns playing the game. At the time of the theft, it was

Stuart’s turn to play. Shortly after her turn started, Stuart

was “knocked [] out of the game and [] realized something was

out of order.” She saw that Hull and the gunman had possession

of her laptop, which had been on a table three feet away from

her, with her homework still visible on the screen.

Davis and Hull were each indicted on four counts of robbery

with a dangerous weapon, and one count of first-degree burglary.

At the close of the State’s evidence, defendants moved to

dismiss the charges. The trial court granted these motions with

respect to the robbery with a dangerous weapon of Stuart, and

denied them as to the other charges. With respect to the

robbery of Stuart, the trial court submitted the lesser included

offense of larceny from the person to the jury.

Defendants were found guilty of all charges. Hull was

sentenced to consecutive active prison terms of 51-74 months for

the robbery of Hawkins, 51-74 months for the robbery of

Williams, and 5-15 months for the larceny from Stuart. He was
 -4-
also sentenced to concurrent active prison terms of 51-74 months

for the robbery of Perry and 51-74 months for first-degree

burglary. Davis was sentenced to consecutive active prison

terms of 57-81 months for the robbery of Hawkins, 57-81 months

for the robbery of Williams, and 6-17 months for the larceny

from Stuart. She was also sentenced to concurrent active prison

terms of 57-81 months for the robbery of Perry, and 57-81 months

for first-degree burglary.

Defendants appeal.

II. Larceny from the Person

In defendants’ first and second arguments, they contend

that the trial court erred by denying their motions to dismiss

the charge of larceny from the person as to Stuart, or

alternatively that the trial court committed plain error when it

instructed the jury on that offense. We disagree.

A. Standard of Review

“This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

We review “unpreserved issues for plain error when they

involve either (1) errors in the judge’s instructions to the
 -5-
jury, or (2) rulings on the admissibility of evidence.” State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done,” or “where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,” or the error has
“‘resulted in a miscarriage of justice or in
the denial to appellant of a fair trial’” or
where the error is such as to “seriously
affect the fairness, integrity or public
reputation of judicial proceedings” or where
it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,

333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

B. Analysis

At the close of State’s evidence, defendants moved to

dismiss the charge of robbery as to Stuart. The trial court

dismissed that charge, but submitted to the jury the lesser

offense of larceny from the person. On appeal, defendants first

contend that the trial court erred in denying their motions to

dismiss the charge of larceny from the person.
 -6-
The essential elements of larceny are: (1) taking the

property of another; (2) carrying it away; (3) without the

owner’s consent; and (4) with intent to permanently deprive the

owner of the property. State v. Wilson, 154 N.C. App. 686, 690,

573 S.E.2d 193, 196 (2002). It is larceny from the person if

the property is taken from the victim’s person or “within the

victim’s protection and presence at the time of the taking.”

Id. at 691, 573 S.E.2d at 196 (quoting State v. Barnes, 121 N.C.

App. 503, 505, 466 S.E.2d 294, 296, aff’d, 345 N.C. 146, 478

S.E.2d 188 (1996)).

In the instant case, the State presented evidence that

Stuart was using her computer to do her physics homework and,

while studying, was also playing a computer game called “Dance

Central.” The game was operated by a Kinect video game system

connected to Hawkins’ television. A participant of the game was

to duplicate dance moves on the television display. The

participant’s dance moves were captured by a video camera and

the game then compared the displayed moves with the

participant’s moves in a side by side display.

When defendants and the gunman entered the apartment, it

was Stuart’s turn to play the game. She had just started her

turn – Stuart testified that it was “shortly after I got like
 -7-
maybe like a verse -- like a couple of sentences into the song”

– when Stuart was “bumped” by someone, which caused her to be

“kicked out” of the game. At that point, she saw defendants

absconding with her laptop.

Defendants contend that Stuart was unaware of the taking

until after it occurred; however, the evidence suggests that

Stuart became aware of the taking as it occurred. Specifically,

Matthews testified:

I was pretty much oblivious to what was
happening, so I was just like who was this
person picking up [Stuart]'s laptop, and so
I asked [Stuart], I said, "Do you know this
person?" and she said, "No." I was like,
"Well, she took your laptop."

Stuart saw the laptop among the items that defendants were

stealing, and which were in the possession of defendants as they

exited the apartment.

The test set forth in Barnes was whether the property

stolen was taken from the victim’s person or within the victim’s

protection and presence when the property was stolen. Barnes,

121 N.C. App. at 505, 466 S.E.2d at 296. In the instant case,

the laptop computer was not on Stuart’s person when it was

taken. However, it was about three feet from Stuart, and the

homework, from which she was taking a momentary break, was still

on the computer screen. The computer was therefore within her
 -8-
protection and presence at the time it was taken. The brief

break from her studies did not remove the laptop from her

protection or presence.

The trial court did not err in denying the motions of the

defendants to dismiss the charge of larceny from the person at

the close of all of the evidence.

Defendants next argue, in the alternative, that the trial

court erred in its instructions to the jury with regard to the

charge of larceny from the person. Since defendants failed to

object to the trial court’s jury instruction at trial, we review

this issue only for plain error.

The trial court charged the jury in accordance with North

Carolina Pattern Jury Instruction Criminal 216.20 as follows:

“Property is stolen from the person if it was under the

protection of the person at the time. Property may be under the

protection of the person although not actually attached to her,

for that which is taken in her presence is, in law, taken from

her person.” See N.C.P.I., Crim. 216.20, fn. 1 (2011).

Defendants contend that this instruction was based upon the

Supreme Court case of State v. Buckom, 328 N.C. 313, 401 S.E.2d

362 (1991), and that since Buckom was decided, the Supreme Court

narrowed the definition of that element of larceny from the
 -9-
person. Defendants cite to the case of State v. Barnes, in

which our Supreme Court held that “for larceny to be ‘from the

person,’ the property stolen must be in the immediate presence

of and under the protection or control of the victim at the time

the property is taken.” Barnes, 345 N.C. at 149, 478 S.E.2d at

190 (emphasis in original).

Defendants contend that Barnes abrogated the holding in

Buckom. We hold that there is no substantial difference between

the holdings of Buckom and Barnes. In Buckom, the Court

observed that:

Taken in the context of the foregoing common
law principles, “[p]roperty is stolen ‘from
the person,’ if it was under the protection
of the person at the time.... [P]roperty may
be under the protection of the person
although not actually ‘attached’ to him.” R.
Perkins & R. Boyce, Criminal Law 342 (3d ed.
1982) (footnotes omitted). For example, if a
jeweler places diamonds on a counter for
inspection by a customer, under the
jeweler's eye, the diamonds remain under the
protection of the jeweler. Id. It has not
been the general interpretation that larceny
from the person “requires an actual taking
from the person, and is not committed by a
taking from the immediate presence and
actual control of the person.... As said by
Coke in the 1600's: ‘for that which is taken
in his presence, is in law taken from his
person.’ ” Id. at 342-43 (quoting 3 Coke,
Institutes *69).
 -10-
Buckom, 328 N.C. at 317-18, 401 S.E.2d at 365. In Barnes, the

Court did not disagree with this analysis; in fact, it relied

upon Buckom:

The crime of larceny from the person is
regularly understood to include the taking
of property “from one's presence and
control.” Thus, for larceny to be “from the
person,” the property stolen must be in the
immediate presence of and under the
protection or control of the victim at the
time the property is taken.

State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996)

(citing, inter alia, Buckom, 328 N.C. at 317-18, 401 S.E.2d at

365) (citations omitted) (emphasis in original). Barnes

ultimately distinguished Buckom based upon the facts of the

case, but in terms of the law the two opinions were in

agreement. The addition of the words “at the time the property

is taken” adds nothing to the legal analysis of the elements of

the crime. The only temporally relevant time is the time of the

theft itself.

Even assuming arguendo that Barnes superseded the holding

in Buckom, defendants have failed to show how this impacts the

outcome of their case. Whether we rely upon Buckom or Barnes,

there was substantial evidence that the property was taken from

Stuart’s presence, that she was using the computer to perform

her physics homework, and that the computer was under her
 -11-
control or protection at the time it was taken. Even had the

jury been instructed as defendants suggest, we hold that it

would not have had a “probable impact on the jury's finding that

the defendant was guilty.” Defendants have failed to show that

the trial court committed plain error in its jury instruction

concerning the charge of larceny from the person.

This argument is without merit.

III. Mitigating Factor

In her third argument, Davis contends that the trial court

abused its discretion by failing to find a statutory mitigating

factor, and by failing to consider mitigating evidence. We

disagree.

A. Standard of Review

The standard of review for application of
mitigating factors is an abuse of
discretion. The court shall consider
evidence of aggravating or mitigating
factors present in the offense that make an
aggravated or mitigated sentence as
appropriate, but the decision to depart from
the presumptive range is in the discretion
of the court. The court shall make findings
of the aggravating and mitigating factors
present in the offense only if, in its
discretion, it departs from the presumptive
range of sentences specified in G.S. 15A–
1340. 17(c)(2).

State v. Hagans, 177 N.C. App. 17, 31, 628 S.E.2d 776, 785

(2006) (citations and quotations omitted).
 -12-
B. Analysis

We have previously held that the trial court is required to

make findings of aggravating and mitigating factors “only if, in

its discretion, it departs from the presumptive range of

sentences[.]” Hagans, 177 N.C. App. at 31, 628 S.E.2d at 785.

Davis was sentenced from the presumptive range. Accordingly, we

hold that the trial court was not required to make findings of

aggravating or mitigating factors, or to impose a mitigated

range sentence.

This argument is without merit.

IV. Lesser Included Offense

In his third argument, Hull contends that the trial court

erred in denying defendant’s request to instruct the jury on the

lesser included offense of misdemeanor larceny with regard to

the theft of Stuart’s laptop computer. We disagree.

A. Standard of Review

“[Arguments] challenging the trial court’s decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). “An instruction on a lesser-included offense must be

given only if the evidence would permit the jury rationally to

find defendant guilty of the lesser offense and to acquit him of
 -13-
the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d

767, 771 (2002).

B. Analysis

Hull contends that Stuart’s lack of awareness of the theft

as it happened did not support a conviction of larceny from the

person, but rather supported a conviction for the lesser offense

of misdemeanor larceny. Hull cites to our decision in State v.

Lee, 88 N.C. App. 478, 363 S.E.2d 646 (1988), in which we held

that the theft of a woman’s purse from a shopping cart while she

was several steps away and unaware of the theft did not

constitute larceny from the person, but rather constituted

misdemeanor larceny.

Hull, in his argument on appeal, challenges only the

element of proximity and control. As he does not challenge the

other elements of larceny from the person, we limit our review

only to proximity and control. See State v. Lucas, ___ N.C.

App. ___, ___, 758 S.E.2d 672, 676 (2014).

We note first that Lee was decided prior to both Buckom and

Barnes, and that these later Supreme Court cases clarified the

law of larceny from the person. We further note that, in

contrast with the victim in Lee, who did not realize that the

theft had occurred until sometime later, the evidence in the
 -14-
instant case was that Stuart became aware of the theft

immediately, as it was occurring. We hold that the instant case

is distinguishable from Lee.

The crucial elements of larceny from the person are

proximity and control. The evidence in the instant case

supports both elements. Stuart’s awareness, although not one of

the elements of the offense, is a factor to be considered in

analyzing her control. As stated in section II B of this

opinion, Stuart was sufficiently aware of the larceny as it

occurred to have been in control of her property.

Because the evidence satisfied the element of proximity and

control, and Hull challenges no other elements of larceny from

the person, we hold that the evidence satisfied all of the

requirements of the greater offense. The trial court did not

err in declining to instruct the jury upon the lesser offense of

misdemeanor larceny.

This argument is without merit.

NO ERROR.

Judge GEER concurs.

Judge HUNTER, Robert N., Jr. concurred prior to 6 September

2014.