Opinion
No. COA09-826.
Filed February 2, 2010.
Cumberland County No. 07CRS67290.
Appeal by defendant from judgment entered 11 March 2009 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 18 January 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kevin G. Mahoney, for the State. Daniel F. Read for defendant-appellant.
Defendant James Thomas appeals from his conviction of one count of common law robbery and from the sentence imposed pursuant to his guilty plea of having attained habitual felon status. Defendant argues that the trial court erred in denying his motion to dismiss and in imposing a cruel and unusual sentence in violation of the Eighth Amendment. Because the record establishes that substantial evidence supported the elements of common law robbery, and defendant's sentence as a habitual felon is constitutional, we find no error.
Facts
The State's evidence tended to establish the following. On 21 November 2007, Robert Grantham was employed as a loss prevention officer at Kohl's Department Store in Fayetteville, North Carolina. Mr. Grantham was monitoring surveillance cameras in the store and observed defendant conceal on his person a pair of gloves, a knit hat, a belt, and several boxes of fragrances. Mr. Grantham explained at trial that he generally waits for suspects to leave the store — thereby showing intent — before approaching them. He thus waited until he saw defendant leave the store without paying for the merchandise.
After defendant exited the store, Mr. Grantham followed defendant into the parking lot and identified himself as "Kohl's loss prevention." When defendant stopped and turned toward Mr. Grantham, Mr. Grantham said, "Why don't you come on back in the store. Let's talk about the merchandise." Defendant responded, "What merchandise?" Mr. Grantham answered, "The cologne and the hat and the gloves." Defendant refused and began to walk away. After another attempt to bring defendant back inside, Mr. Grantham called 911 because he believed that defendant was not going to cooperate.
Mr. Grantham told the 911 operator that he had an adult male shoplifter in the parking lot who was being uncooperative and would not go back inside the store. At that point, while Mr. Grantham was on the telephone, defendant turned around three quarters of the way and said, "I have a knife." Defendant's hand went toward his right pocket when he made the statement. Fearing injury, Mr. Grantham "immediately disengaged" from attempting to stop defendant, told the 911 operator about the knife, and started walking back towards the store.
While Mr. Grantham was still on the telephone, a station wagon pulled up, and defendant ran to it and jumped inside. Mr. Grantham followed the vehicle and was able to read the license plate number to the 911 operator. The police stopped the vehicle shortly thereafter, and Mr. Grantham identified photos of the stolen items, which had been found in the station wagon. The police also discovered a folding knife in defendant's right front pocket.
Defendant was indicted for common law robbery and for being a habitual felon. At trial, defendant stipulated to the crime of misdemeanor larceny, but argued he was not guilty of common law robbery. The jury, however, returned a verdict finding defendant guilty of common law robbery. After defendant entered a plea of guilty to being a habitual felon, the trial court sentenced defendant to a presumptive-range term of 136 to 173 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant first contends that the trial court erred in denying his motion to dismiss the charge of common law robbery. When reviewing the denial of a motion to dismiss, we consider "the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79, 126 S. Ct. 47 (2005). A trial court properly denies a motion to dismiss when "substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator." Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
"Common law robbery requires proof of four elements: (1) felonious, non-consensual taking of (2) money or other personal property (3) from the person or presence of another (4) by means of force." State v. Robertson, 138 N.C. App. 506, 508, 531 S.E.2d 490, 492 (2000). In this case, defendant argues only that the State failed to present sufficient evidence to prove the element of force.
The element of force requires proof of a taking either "by violence or putting [the victim] in fear." State v. Moore, 279 N.C. 455, 457, 183 S.E.2d 546, 547 (1971). The State need not prove both violence and fear, as evidence of either will suffice. Id. at 458, 183 S.E.2d at 547. In other words, the element of force may be proven by actual or constructive force. Robertson, 138 N.C. App. at 508, 531 S.E.2d at 492. Actual force involves violence or force to the body. Id. Constructive force, on the other hand, "exists if the defendant, by words or gesture, has placed the victim in such fear as is likely to create an apprehension of danger and thereby induce [him] to part with [his] property for the sake of [his] person." Id. at 510, 531 S.E.2d at 493. Our Supreme Court has explained:
Under constructive force are included all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking . . . [.] No matter how slight the cause creating the fear may be or by what other circumstances the taking may be accomplished, if the transaction is attended with such circumstances of terror, such threatening by word or gesture, as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person, the victim is put in fear.
State v. Norris, 264 N.C. 470, 473, 141 S.E.2d 869, 872 (1965) (internal quotation marks omitted).
In this case, defendant physically threatened Mr. Grantham with both words and gestures. As he announced he had a knife, he moved his hand towards his pocket, causing Mr. Grantham to walk away and cease trying to stop defendant from shoplifting the company's property. This evidence, viewed in the light most favorable to the State, is sufficient to support the element of force.
Defendant argues, however, that the theft was over by the time that defendant made the threat. In State v. Bellamy, 159 N.C. App. 143, 582 S.E.2d 663, cert. denied, 357 N.C. 579, 589 S.E.2d 130 (2003), however, this Court found similar evidence to be sufficient to support a conviction of robbery with a dangerous weapon. The defendant in Bellamy shoplifted videotapes and ran out the door of the store. One of the store's employees chased after him to a distance approximately 20 feet from the store, at which point the defendant turned around and waved a pocketknife, asking, "`You want a piece of this?'" Id. at 145, 582 S.E.2d at 665. The employee, who was five or six feet from the defendant, then turned around and went back to the store where a second employee had already called the police. Id., 582 S.E.2d at 665-66.
In response to the defendant's argument in Bellamy that the taking and use of the pocketknife were not part of a single transaction — essentially the same argument made by defendant here — this Court first observed that just because a thief has physically taken an item does not mean that the rightful owner no longer has possession of it. Id. at 149, 582 S.E.2d at 668. In concluding that the motion to dismiss was properly denied, the Court explained:
[D]efendant took the videos and fled with [the employee] in pursuit. The chase ended only about twenty feet from the video store; at no time did the chase cease or [the employee] lose sight of defendant; and defendant did not make good his escape until after threatening [the employee] with the knife. Defendant's brandishing of a weapon . . . was necessary to complete the taking of the videos by thwarting [the employee's] attempt to retain lawful possession of them. From these facts, the taking and threatened use of force was so joined by time and circumstances so as to constitute a single transaction. Thus, the trial court did not err in denying the motion to dismiss as there was substantial evidence that the pocketknife was a dangerous weapon used to threaten [the employee's] life during the theft of the videos.
Id. (internal citation omitted). The Court further concluded that this evidence was also sufficient to support the trial court's submission to the jury of the offense of common law robbery. Id. at 149 n. 1, 582 S.E.2d at 668 n. 1.
Bellamy is materially indistinguishable from this case with the exception that the pocketknife in Bellamy was actually brandished as opposed to its use merely threatened — a fact that does not affect our analysis in this case. Here, as in Bellamy, an employee followed defendant outside the store after he had shoplifted merchandise, seeking to retain possession of the property. When they were still in the store's parking lot and while the employee was six feet away, defendant physically threatened the employee by warning he had a knife in order to successfully leave the store's property with the merchandise. Based on Bellamy, we hold that the trial court properly denied the motion to dismiss in this case.
Next, defendant contends that his sentence violates the Eighth Amendment prohibition on cruel and unusual punishment. Defendant argues that, given the facts of his case, the sentence he received pursuant to the Habitual Felon Act, N.C. Gen. Stat. § 14-7.1 et seq., was excessive and grossly disproportionate to the severity of the crime of which defendant was convicted. We disagree.
Our Supreme Court has held that "[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment." State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). Furthermore, we have previously rejected Eighth Amendment challenges to the sentencing scheme under the Habitual Felon Act. See State v. Hensley, 156 N.C. App. 634, 639, 577 S.E.2d 417, 421 (holding that active sentence of 90 to 117 months based on defendant's habitual felon status and commission of one nonviolent substantive offense did not violate Eighth Amendment), disc. review denied, 357 N.C. 167, 581 S.E.2d 64 (2003); State v. Cates, 154 N.C. App. 737, 741, 573 S.E.2d 208, 210 (2002) ("Habitual felon laws have withstood scrutiny under the Eighth Amendment to the United States Constitution in our Supreme Court and in the United States Supreme Court."), disc. review denied, 356 N.C. 682, 577 S.E.2d 897, cert. denied, 540 U.S. 846, 157 L. Ed. 2d 84, 124 S. Ct. 121 (2003).
Here, defendant was not sentenced to 136 to 173 months imprisonment solely for using force to shoplift merchandise from Kohl's Department Store. He was sentenced to this term based on his criminal history, including previous convictions for embezzlement and breaking and entering. His sentence was further increased based on his 18 prior record level points. Accordingly, we conclude that defendant's sentence as a habitual felon is constitutional.
No error.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).