Opinion
No. 04-1686.
Filed January 17, 2006.
Anson County Nos. 03 CRS 2797, 50709, 50753.
Appeal by defendant from judgment entered 5 February 2004 by Judge Mark E. Klass in Anson County Superior Court. Heard in the Court of Appeals 9 January 2006.
Attorney General Roy Cooper, by Special Deputy Attorney General Daniel D. Addison, for the State. Eric A. Bach for defendant-appellant.
Douglas B. Bennett ("defendant") was indicted for common law robbery and for attaining the status of an habitual felon. At trial the State presented evidence showing: on 27 April 2003, Corteasha Smith ("Smith") worked as a cashier at the Markette No. 12 ("Markette") in Wadesboro, North Carolina. Smith testified that at approximately 11:30 p.m. defendant entered the store. Defendant walked to the counter and asked for two cartons of Newport cigarettes and one carton of Winston cigarettes. Smith was suspicious as customers ordinarily did not buy three cartons of cigarettes, so she laid them on the counter but kept her hands on them. Smith rang up the cigarettes and the total came to $68.00.
Defendant stated he wanted to inspect the cigarettes since he was purchasing them for someone else. Smith affirmed they were correct, but defendant insisted on seeing them. When another customer entered the Markette, defendant grabbed two boxes of the cigarettes and exited the store. Smith observed defendant get into a "dark looking purple Lumina" and drive away "toward [Highway] 109." Defendant was convicted of felonious larceny from the person and pled guilty to attaining the status of an habitual felon. Defendant was sentenced to a term of 122 months to 156 months in the custody of the North Carolina Department of Correction and defendant appeals.
Defendant first argues that the trial court erred by denying both his pretrial motion to dismiss as well as his motion to dismiss for insufficiency of the evidence. Defendant contends that the indictment for common law robbery was inadequate to charge him with the offense of larceny from the person because it did not allege ownership of the stolen cigarettes. Additionally, defendant claims that the trial court should have dismissed the case for insufficiency of the evidence because the State failed to prove ownership of the cigarettes.
As to the indictment, there was no defect and the trial court properly tried defendant rather than dismiss the charge against him. "Our courts have consistently considered robbery to be merely an aggravated larceny and thus have held that a defendant may be properly convicted of larceny from the person upon an indictment for common law robbery." State v. Young, 305 N.C. 391, 392, 289 S.E.2d 374, 375 (1982) (citations omitted) (emphasis added); see also State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265, 267 (2001) (explaining that "[l]arceny from the person is a lesser included offense of common law robbery.") Thus, we conclude that the trial court could properly try defendant on the charge of larceny from the person based on the indictment for common law robbery.
As to defendant's claim regarding insufficiency of the evidence, the trial court properly denied his motion to dismiss. A motion to dismiss is properly denied if "there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). "[I]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence." State v. Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460, 462 (2000) (quoting State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979)). "[C]ontradictions and discrepancies in the evidence presented are for the jury to resolve and do not warrant dismissal of a case." State v. Jarrell, 133 N.C. App. 264, 268, 515 S.E.2d 247, 250 (1999).
The elements of larceny include: "(1) taking of the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of the property permanently." State v. Wilson, 154 N.C. App. 686, 690, 573 S.E.2d 193, 196 (2002); Accord State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983). The State illustrated through the testimony of Smith that she retrieved the cigarettes from behind the counter and kept her hand firmly upon them as she did not trust defendant. It was only when another patron entered the Markette that defendant grabbed the cigarettes from Smith and exited the store. This evidence was more than sufficient to withstand a motion to dismiss by demonstrating that defendant took and carried away cigarettes belonging not to him but to the owner of the Markette ("owner"), without the owner's consent and with the intent to deprive the owner of them permanently. This assignment of error is overruled.
Defendant next argues that the trial court erred by admitting evidence of a store theft not sufficiently similar to the theft in the instant case thereby contravening North Carolina Rule of Evidence 404(b). Rule 404(b) prohibits the admission of evidence of other crimes or acts in order to prove the character of the person or to show he acted in conformity with past conduct. N.C.Gen. Stat. § 8C-1, Rule 404 (2003). "[Rule 404(b)] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." Id.
The theft in the instant case and the evidence of the theft committed after the defendant was charged were sufficiently similar to warrant the inclusion of such evidence. Both thefts took place at Markette stores in Wadesboro. Both thefts involved the defendant asking for both Winston and Newport cigarettes in cartons. Both thefts involved the defendant eventually grabbing the cartons and exiting the store once the cashier became distracted. The second theft occurred merely nine days after the theft for which defendant was tried in the instant case. In short, both thefts were sufficiently similar in accordance with Rule 404(b), supra, to warrant the inclusion of each theft. This assignment of error is overruled.
The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6)(2005), we deem them abandoned.
No error.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).