Opinion
No. 07-947.
Filed April 15, 2008.
Guilford County No. 06CRS79195.
Appeal by Defendant from judgment dated 7 September 2006 by Judge Ronald E. Spivey in Superior Court, Guilford County. Heard in the Court of Appeals 24 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Vaughn S. Monroe, for the State. Irving Joyner for Defendant-Appellant.
Tunisa Cotton Foster (Defendant) appeals from a judgment entered on a jury verdict finding her guilty of common law robbery. The State presented evidence tending to show that on 8 May 2006, Lauren Lassiter (Ms. Lassiter), was a loss prevention officer for J.C. Penney (the store) at Four Seasons Town Center in Greensboro. Ms. Lassiter observed Defendant, an older woman (later identified as Defendant's mother), and a girl about eight years old (later identified as Defendant's daughter), stuff children's clothing into a bag while in the store. Ms. Lassiter observed Defendant, Defendant's daughter, and a boy about thirteen years old (later identified as Defendant's son) walk out of the store without paying for the merchandise. Ms. Lassiter left her observation booth and followed Defendant and Defendant's children outside the store where Ms. Lassiter instructed them to return to Ms. Lassiter's office in the store. While Defendant and Defendant's children were in Ms. Lassiter's office, Ms. Lassiter informed them that she had seen them take merchandise without paying for it. Ms. Lassiter looked in the bag and confirmed that it contained the same clothing she had seen them place in the bag. Defendant became upset and ordered her son and daughter to leave the office with her. Defendant's daughter picked up the bag and the three of them left the office. Ms. Lassiter chased after them into the parking lot, where they were joined by Defendant's mother. Ms. Lassiter attempted to take the bag away from Defendant's daughter, but Defendant and Defendant's mother intervened. Defendant grabbed Ms. Lassiter around the jaw and yanked, causing Ms. Lassiter's back to "pop." Ms. Lassiter fell to the ground, and Defendant and her family, carrying the bag, entered a vehicle and left.
Defendant testified that she had previously purchased the clothing in the bag and that she was seeking to exchange the clothing for other clothes. Defendant further testified she sought to produce a receipt for the clothes but that Ms. Lassiter would not permit Defendant to look in her pocketbook for the receipt. Defendant denied striking or grabbing Ms. Lassiter. Defendant testified that she moved her hands only to prevent Ms. Lassiter from grabbing or handcuffing her.
By her sole assignment of error, Defendant contends the trial court erred by denying her motion to dismiss the charge of common law robbery. In deciding a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are to be disregarded and left for resolution by a jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991).
Common law robbery consists of the non-consensual taking of money or personal property from another by means of violence or fear. State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982). Defendant argues that the taking of the merchandise occurred while Ms. Lassiter was in the observation booth, and thus it was not taken from Ms. Lassiter's person or in Ms. Lassiter's presence. Defendant also argues there was no taking of property from Ms. Lassiter by the use of, or threat of, force or violence. Further, Defendant argues that the merchandise did not belong to Ms. Lassiter.
"In this jurisdiction to be found guilty of armed robbery, the defendant's use or threatened use of a dangerous weapon must precede or be concomitant with the taking, or be so joined with it in a continuous transaction by time and circumstances as to be inseparable." State v. Hope, 317 N.C. 302, 306, 345 S.E.2d 361, 364 (1986). This principle also applies to a forcible taking necessary to the offense of common law robbery. See State v. Bellamy, 159 N.C. App. 143, 150, 582 S.E.2d 663, 668-69, cert. denied, 357 N.C. 579, 589 S.E.2d 130 (2003) (holding that the trial court properly submitted the offense of common law robbery when the evidence showed that the taking and the threat of force constituted a single continuous transaction). To constitute robbery, a taking is not complete until the thief succeeds in removing the property from the victim's possession. State v. Sumpter, 318 N.C. 102, 111, 347 S.E.2d 396, 401 (1986). "Property is in the legal possession of a person if it is under the protection of that person." Bellamy, 159 N.C. App. at 149, 582 S.E.2d at 668. "Thus, just because a thief has physically taken an item does not mean that its rightful owner no longer has possession of it." State v. Barnes, 125 N.C. App. 75, 79, 479 S.E.2d 236, 238, aff'd per curiam, 347 N.C. 350, 492 S.E.2d 355 (1997).
These principles are illustrated in three cases in which our Court has upheld the trial court's denial of a defendant's motion to dismiss a charge of robbery. In Bellamy, the defendant ran out of a store carrying two videos for which he had not paid. Bellamy, 159 N.C. App. at 145, 582 S.E.2d at 665. A store employee chased the defendant through a parking lot and the chase ended when the defendant brandished a pocket knife and the employee discontinued the chase, allowing the defendant to get away. Id.
In Barnes, the defendant and an accomplice ran out of a drug store carrying bottles of pills for which they had not paid. Barnes, 125 N.C. App. at 76, 479 S.E.2d at 237. Store employees chased the defendants to the defendants' vehicle and attempted to retrieve the stolen items. Id. The defendants cut one of the employees with a knife and threatened him with a gun, causing the employee to back away and to permit the defendants to leave the premises. Id. at 76-77, 479 S.E.2d at 237.
More recently, in State v. Hill, ___ N.C. App., 641 S.E.2d 380 (2007),
[the] defendant and her accomplice Ms. Leach: (1) entered the Aldi's store; (2) took merchandise without paying for it; (3) were pursued by an Aldi's employee, Ms. Wright, into the parking lot; (4) where the chase ended when [the] defendant shoved Ms. Wright to the ground and Ms. Leach attempted to run over her with the SUV.
Id. at ___, 641 S.E.2d at 386. Our Court also stated:
The assault with the SUV on Ms. Wright after being pushed to the ground by [the] defendant was made in an attempt to end Ms. Wright's pursuit of the merchandise taken from the Aldi's store. Even though Ms. Leach was circling in the SUV, she never left the premises of the common parking lot between the Aldi's store and the adjacent bank.
Id. at ___, 641 S.E.2d at 386. Our Court held that "[t]his evidence tended to show one continuous transaction where the use or threatened use of a dangerous weapon was so joined in time and circumstances with the taking as to be inseparable." Id. at ___, 641 S.E.2d at 386 (citing Hope, 317 N.C. at 306, 345 S.E.2d at 364). Therefore, our Court held that the trial court did not err by denying the defendant's motion to dismiss. Id. at ___, 641 S.E.2d at 386.
Likewise, in the present case, Defendant and her family entered the store, stuffed clothing into a bag, and left the store without paying for the clothing. When Ms. Lassiter confronted them and accused them of taking the merchandise without paying for it, Defendant and Defendant's daughter grabbed the merchandise and ran out of Ms. Lassiter's office. See id. at ___, 641 S.E.2d at 386 (stating that the defendant and her accomplice "took merchandise without paying for it"). Ms. Lassiter pursued Defendant and Defendant's children outside the store and attempted to retrieve the stolen merchandise. See id. at ___, 641 S.E.2d at 386 (stating that the defendant and her accomplice "were pursued by an Aldi's employee, Ms. Wright, into the parking lot"). Defendant then assaulted Ms. Lassiter, causing Ms. Lassiter to fall to the ground, thereby permitting Defendant and Defendant's family to complete commission of the crime by leaving the parking lot with the merchandise in their possession. See id. at ___, 641 S.E.2d at 386 (recognizing that "[t]he assault . . . was made in an attempt to end Ms. Wright's pursuit of the merchandise taken from the Aldi's store."). Also, as in Hill, Defendant and her family did not leave the premises of the parking lot until after Defendant assaulted Ms. Lassiter. See id. at ___, 641 S.E.2d at 386 (stating that "[e]ven though Ms. Leach was circling in the SUV, she never left the premises of the common parking lot between the Aldi's store and the adjacent bank.").
In the present case, the above-cited evidence tended to show one continuous transaction where the use of force was "so joined . . . in a continuous transaction by time and circumstances as to be inseparable" from the taking. See Hope, 317 N.C. at 306, 345 S.E.2d at 364.
Therefore, despite Defendant's contention to the contrary, Defendant did take property from Ms. Lassiter by the use of force or violence. Although Defendant also argues that the merchandise was not taken from Ms. Lassiter's person or in Ms. Lassiter's presence, the evidence showed that Defendant and her daughter grabbed the merchandise and ran out of Ms. Lassiter's office. Also, when Ms. Lassiter followed Defendant and Defendant's family to the parking lot and attempted to retrieve the merchandise, Defendant assaulted Ms. Lassiter, thereby permitting Defendant and Defendant's family to complete commission of the crime by leaving the parking lot. Thus, the taking was from Ms. Lassiter's person or in her presence. Finally, Defendant's argument that the property did not belong to Ms. Lassiter lacks merit. Ms. Lassiter, like Ms. Wright in Hill, was an employee of the store from which the merchandise was stolen. See Hill, ___ N.C. App. at ___, 641 S.E.2d at 383.
For the reasons stated above, we hold that the trial court did not err by denying Defendant's motion to dismiss. We overrule Defendant's assignment of error. No error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).