Opinion
No. 04-1694.
Filed 18 October 2005.
Beaufort County No. 03 CRS 51841.
Appeal by Defendant from judgments entered 17 March 2004 by Judge William C. Griffin, Jr., in Superior Court, Beaufort County. Heard in the Court of Appeals 3 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State. Adrian M. Lapas, for the defendant-appellant.
"A trial court must give instructions on all lesser-included offenses that are supported by the evidence[.]" State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001)). In this case, Defendant, charged with robbery with a firearm, contends that the trial court erred by failing to instruct on the lesser-included offense of larceny from the person. Because the evidence was uncontradicted that force was used in taking the money and the trial court submitted the lesser offense of common-law robbery, we hold that the trial court did not err in not submitting the charge of larceny from the person to the jury. Defendant Tyron Hashim Savage was charged with first-degree burglary and robbery with a firearm. The State's evidence tended to show that on the evening of 15 May 2003, Danny Adams heard a knock at his front door as he was lying on his couch. When Adams opened the door, a man wearing a hooded sweatshirt "jumped on" Adams. Defendant then came in the door with a gun in his hand and told Adams to "[g]ive up the money." Defendant stood by the front door while Adams and the hooded man fought. Defendant subsequently held Adams in a choke hold as the hooded man punched Adams. Defendant also struck Adams with the gun. Unable to defend himself any longer, Adams told the men he had $100 in his bedroom. After the hooded man retrieved the $100 from the bedroom, Defendant struck Adams's head with his gun and the two men fled. Adams, who suffered bruises, scrapes and a cut over his eye, was later transported to the hospital.
Defendant testified that he and Linwood Brown (Brown) went to Adams's residence to "get some weed." Defendant testified that after Brown bought a small bag of marijuana, Brown snatched a bigger bag of marijuana from Adams's hand. Defendant testified that he stood in the door way as the two men exchanged blows. Defendant testified that he did not assist either Adams or Brown during the fight, that he did not possess a gun and that he did not take Adams's money.
A jury found Defendant guilty of first-degree burglary and of the lesser-included offense of common-law robbery. The trial court sentenced Defendant to ninety to 117 months imprisonment for the burglary conviction and a consecutive term of thirteen to sixteen months imprisonment for the robbery conviction. Defendant appeals.
Defendant first contends the trial court erred by not instructing the jury on the lesser offense of larceny from the person. Defendant admits that he neither requested the jury be instructed on the lesser-included offense nor objected to the jury charge and, therefore, asks this Court to review for plain error. Plain error arises when the error is "`so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)).
"It is well settled that `[a] trial court must give instructions on all lesser-included offenses that are supported by the evidence[.]'" State v. Ray, 149 N.C. App. 137, 145-46, 560 S.E.2d 211, 217 (quoting Lawrence, 352 N.C. at 19, 530 S.E.2d at 819). "The trial court may decline to submit the lesser offense to the jury if `the State's evidence is positive as to each element of the crime charged' and there is no `conflicting evidence relating to any of [the] elements.'" Id. at 146, 560 S.E.2d at 217 (quoting State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990)). To convict a defendant of robbery with a firearm, the State must prove the (1) felonious, non-consensual taking of (2) money or personal property (3) from the person or presence of another (4) by means of force or intimidation occasioned by the use or threatened use of firearms. N.C. Gen. Stat. § 14-87 (2004); State v. Waddell, 279 N.C. 442, 444, 183 S.E.2d 644, 646 (1971). To convict a defendant of larceny from the person, it must be shown that he (1) took the property of another, (2) from their person, (3) carried it away, (4) without the owner's consent, and (5) with the intent to deprive the owner of the property permanently. N.C. Gen. Stat. § 14-72(b)(1) (2004); State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983). Larceny from the person is a lesser offense of robbery with a firearm and contains all of the above elements except for the requirement of use or threatened use of a firearm. State v. White, 322 N.C. 506, 518, 369 S.E.2d 813, 819 (1988).
Here, there is evidence showing that the taking of Adams's $100 was perpetrated by threatened use of a firearm. Defendant hit Adams with a gun and held Adams while Brown punched Adams. Adams testified that Defendant was holding a gun in his hand and pointed it at him. But Defendant testified that he did not have a gun.
However, Defendant testified that he witnessed Brown punching Adams. Therefore, the evidence is uncontradicted that the taking of Adams's money was forcible.
The lesser-included offense of common law robbery was submitted to the jury, which the jury found Defendant guilty of. To convict a defendant of common-law robbery, the State must prove the (1) felonious, non-consensual taking of (2) money or personal property (3) from the person or presence of another (4) by means of force or placing in fear. State v. Hedgecoe, 106 N.C. App. 157, 161, 415 S.E.2d 777, 780 (1992). Larceny from the person is also a lesser-included offense of common law robbery. State v. Pickard, 143 N.C. App. 485, 491, 547 S.E.2d 102, 106, disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001). In the absence of any evidence to show that the taking was not forcible, we hold the trial court properly refused to submit the offense of larceny from the person where the alternative lesser-included offense common-law robbery was submitted.
Defendant also raises an ineffective assistance of counsel claim with respect to his counsel's failure to request an instruction on larceny from the person as a lesser-included offense of robbery with a firearm. Because we have found no error pertaining to the trial court's jury instructions, this assignment of error is overruled.
Defendant finally contends the trial court erred in sentencing him as a prior record level III offender. Defendant argues the State did not prove he was a prior record level III offender pursuant to the North Carolina sentencing statutes. We disagree.
Section 15A-1340.14 of the North Carolina General Statutes requires that each of a felony offender's prior convictions be proven to determine the offender's prior record level. N.C. Gen. Stat. § 15A-1340.14 (2004). Section 15A-1340.14 also provides that the State bears this burden of proving any prior convictions by a preponderance of the evidence. Section 15A-1340.14(f) lists several methods the State may use to prove prior convictions:
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
N.C. Gen. Stat. § 15A-1340.14(f). Clear and unequivocal statements expressing agreement with the items listed on a sentencing worksheet have been held to be stipulations. See State v. Morgan, 164 N.C. App. 298, 306-07, 595 S.E.2d 804, 810-11 (2004) (holding defendant had stipulated to record level where defense counsel "conceded the existence of the convictions by arguing that Defendant should be sentenced at a level III on the basis of her prior record" and "made no objection to the prior record level worksheet except to the number of points [that a] third degree homicide conviction from New Jersey should receive").
Here, the State presented evidence in the form of a stipulation by the parties. The record discloses that on 17 March 2004, the prosecutor and defense attorney signed a written stipulation, in which the parties stipulated to the list of Defendant's prior convictions and agreed upon Defendant's prior record level set out in the worksheet provided by the State. The trial court relied upon this written stipulation to sentence Defendant for the burglary and robbery convictions and to sentence Defendant for a conviction to which Defendant pled guilty that same day. See Morgan, 164 N.C. App. at 306-07, 595 S.E.2d at 810-11. We conclude, therefore, that this evidence indicates that the State carried its burden of proving each prior conviction by a preponderance of the evidence under section 15A-1340.14 of the North Carolina General Statutes. Accordingly, this assignment of error is without merit.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).