State v. Cox ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 94PA19
Filed 14 August 2020
STATE OF NORTH CAROLINA
v.
JAMES A. COX
Appeal pursuant to N.C.G.S. § 7A-31 from the published decision of a
unanimous panel of the Court of Appeals, 264 N.C. App. 217, 825 S.E.2d 266 (2019),
finding error and reversing a judgment entered on 16 January 2018 by Judge William
W. Bland in the Superior Court, Onslow County. Heard in the Supreme Court on 4
May 2020.
Joshua H. Stein, Attorney General, by Daniel P. O’Brien, Special Deputy
Attorney General, for the State.
Glenn Gerding, Appellate Defender, and Andrew DeSimone, Assistant
Appellate Defender, for defendant-appellee.
MORGAN, Justice.
In this case we must determine whether the trial court erroneously denied
defendant’s motion to dismiss the charge of conspiracy to commit robbery with a
dangerous weapon and the charge of felonious breaking or entering at the close of all
of the evidence. In light of our conclusion that the State presented sufficient evidence
at defendant’s trial to show that defendant possessed the requisite felonious intent
necessary to support defendant’s convictions of each of these charged offenses, we find
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Opinion of the Court
no error in the trial court’s ruling. Accordingly, we reverse the decision of the Court
of Appeals and reinstate these convictions.
Factual and Procedural Background
At trial, the State’s evidence tended to show that on 8 August 2015, defendant
and his girlfriend Ashley Jackson went to the home of Richard Linn. Prior to this
date, defendant had given $20.00 to Linn so that Linn could purchase, inter alia,
Percocet tablets on behalf of Jackson. These tablets constituted a prescription
medication which neither defendant nor Linn could legally possess. After receiving
the $20.00 amount of funds from defendant, Linn contacted Angela Leisure to obtain
the controlled substances sought by defendant, added some of Linn’s own money to
defendant’s $20.00 amount, and ultimately gave Leisure an amount of funds between
$50.00 and $60.00 for the purchase of drugs. While Leisure had operated as a regular
“go-between” for Linn in his past efforts to acquire illicit controlled substances, on
this occasion, Leisure neither obtained the illegal drugs which were requested by
Linn nor returned any of the drug purchase money to him.
Upon arriving at Linn’s residence on 8 August 2015, defendant displayed a gun
to Linn and demanded that Linn accompany defendant and Jackson in going to
Leisure’s house “to talk with her about their money.” Defendant, Jackson, and Linn
went to Leisure’s home by vehicle. When they arrived, Leisure’s boyfriend Daniel
McMinn was standing outside of Leisure’s residence. Defendant, Jackson, and Linn
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Opinion of the Court
entered Leisure’s home, followed by McMinn. Once inside, Jackson pulled Leisure’s
hair, punched her, and forced her to the floor, demanding “their money.” McMinn
started to call the police, but he stopped when defendant displayed a handgun “in a
threatening way.” After a few minutes, Linn told Jackson to stop her assault on
Leisure, saying: “I think she’s had enough.” As defendant, Jackson, and Linn
departed Leisure’s residence, defendant kicked a hole in the front door of Leisure’s
home and fired a shot into the residence, striking a mirrored door inside the home.
Defendant, Jackson, and Linn did not obtain money or any personal property from
Leisure’s home.
Based on the events of 8 August 2015, defendant was arrested and charged
with first-degree burglary, conspiracy to commit robbery with a dangerous weapon,
and discharging a weapon into an occupied property.
Following the State’s presentation of its evidence at trial, defendant moved to
dismiss the charges against him for insufficiency of the evidence. After the motion
was denied, defendant presented evidence in his defense, including his own
testimony. Defendant testified that he went to Linn's home on 8 August 2015 to give
Linn $20.00 to purchase pain relievers for Jackson, and that later in the day, Linn
had asked defendant to transport Linn to Leisure’s home because Leisure had taken
the $20.00 but then would not answer Linn’s telephone calls. According to defendant,
Linn said that Linn would get defendant’s money back during an in-person encounter
with Leisure. In his testimony, defendant claimed that neither he, Jackson, or Linn
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Opinion of the Court
had a weapon during the encounter on 8 August 2015 and stated that it was Jackson
rather than defendant who had kicked the front door at Leisure’s home. At the close
of all of the evidence, defendant renewed his motion to dismiss the charges against
him. The trial court denied the motion.
After instructing the jury regarding the charges and the pertinent law in the
case, the trial court further provided the jury with written copies of the jury
instructions. After deliberating for approximately two hours, the jury submitted two
questions to the trial court, each relating to the conspiracy to commit robbery charge:
(1) “Can we get clarification of ‘while the defendant knows that the defendant is not
entitled to take the property,’ ” [with regard to the definition in the jury instructions
on Conspiracy to Commit Robbery with a Dangerous Weapon] and (2) “Is it still
Robbery to take back . . . one owns [sic] property?” After conferring with all counsel,
and specifically without any objection from defendant, the trial court declined to
answer the jury’s questions and instead referred the jury to the written jury
instructions which the trial court had previously provided to it.
On 16 January 2018, the jury returned guilty verdicts against defendant on
the charges of conspiracy to commit robbery with a dangerous weapon, felonious
breaking or entering, and discharging a weapon into an occupied property. The trial
court sentenced defendant to a consolidated term of 60–84 months of incarceration
for the offenses of conspiracy to commit robbery with a dangerous weapon and
discharging a weapon into an occupied property. For the felonious breaking or
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Opinion of the Court
entering offense, defendant received a suspended sentence of incarceration of 6–17
months and was placed on supervised probation for a term of 24 months. Defendant
appealed to the Court of Appeals.
The Court of Appeals reversed defendant’s conviction for conspiracy to commit
robbery with a dangerous weapon. Although on appeal defendant did not contest his
conviction for discharging a weapon into an occupied property, nonetheless the lower
appellate court remanded the case in which defendant was convicted of discharging
a weapon into an occupied property for resentencing because it was consolidated for
judgment with the conspiracy to commit robbery with a dangerous weapon conviction,
which the Court of Appeals decided to reverse. The court below also reversed
defendant’s conviction for felonious breaking or entering and remanded the matter in
order for the trial court to arrest judgment with respect to this felony conviction and
to enter judgment against defendant for misdemeanor breaking or entering. In
reversing defendant’s conviction for the offense of conspiracy to commit robbery with
a dangerous weapon, the Court of Appeals relied upon our decision in State v. Spratt,
265 N.C. 524, 144 S.E.2d 569 (1965) and its predecessor cases in concluding here that
defendant could not be guilty of conspiracy to commit robbery with a dangerous
weapon because defendant did not have the required felonious intent when
attempting to take property from Leisure under a bona fide claim of right to the
money which she had been given on defendant’s behalf. Concomitantly, the Court of
Appeals held that the lack of felonious intent on the part of defendant negated his
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Opinion of the Court
ability to be convicted of the offense of felonious breaking or entering; however, since
misdemeanor breaking or entering is a lesser-included offense of felonious breaking
or entering, and since the lesser offense contains all of the elements of the greater
offense except for felonious intent, the lower appellate court reasoned that the jury’s
determination that defendant had committed an offense of breaking or entering
would, under these circumstances, be converted to the commission of a misdemeanor
breaking or entering offense by defendant.
The State sought a temporary stay of the operation of the mandate of the Court
of Appeals, which we allowed on 22 March 2019. On 9 April 2019, the State filed a
petition for discretionary review, seeking to be heard by this Court on the issue of
whether the Court of Appeals erred by reversing defendant’s convictions for the
offenses of conspiracy to commit armed robbery and felonious breaking or entering
on the basis of insufficiency of the evidence. On 17 April 2019, defendant filed a
response to the State’s petition for discretionary review, as well as his conditional
petition for discretionary review. On 14 August 2019, we allowed the State’s petition
for discretionary review, issued a writ of supersedeas, and denied defendant’s
conditional petition for discretionary review.
Analysis
The test for sufficiency of the evidence in a criminal prosecution is well-
established. “[T]he trial court must consider the evidence in the light most favorable
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to the State, giving the State the benefit of every reasonable inference. If there is
substantial evidence of each element of the offense charged or lesser included
offenses, the trial court must deny defendant’s motion to dismiss as to those charges
supported by substantial evidence and submit them to the jury for its consideration;
the weight and credibility of such evidence is a question reserved for the jury.” State
v. Williams, 330 N.C. 579, 584, 411 S.E.2d 814, 818 (1992) (citations omitted).
Criminal conspiracy is an agreement between two or more persons to do an
unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v.
Arnold, 329 N.C. 128, 142, 404 S.E.2d 822, 830 (1991). Therefore, in the present case,
the State had the burden to present substantial evidence tending to show that
defendant and Jackson agreed to commit each element of robbery with a dangerous
weapon against Leisure.
For the offense of robbery with a dangerous weapon, the State must prove three
elements: (1) the unlawful taking or attempt to take personal property from the
person or in the presence of another; (2) by use or threatened use of a firearm or other
dangerous weapon; (3) whereby the life of a person is endangered or threatened. State
v. Wiggins, 334 N.C. 18, 35, 431 S.E.2d 755, 765 (1993); N.C.G.S. § 14-87(a) (2019).
The taking or attempted taking must be done with felonious intent. State v. Norris,
264 N.C. 470, 472, 141 S.E.2d 869, 871 (1965) (citing State v. Lawrence, 262 N.C. 162,
163–68, 136 S.E.2d 595, 597–600 (1964)). “Felonious intent is an essential element of
the crime of robbery with firearms and has been defined to be the intent to deprive
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the owner of his goods permanently and to appropriate them to the taker’s own use.”
State v. Brown, 300 N.C. 41, 47, 265 S.E.2d 191, 196 (1980).
In the present case, the Court of Appeals has been persuaded by defendant’s
contention, citing our holding in Spratt, that a person cannot be guilty of robbery if
he or she forcibly takes personal property from the actual possession of another under
a bona fide claim of right or title to the property, since such a bona fide claim negates
the requisite felonious intent required for the offense of robbery with a dangerous
weapon. The State, however, argues that the law does not permit a person to use
violence to collect on a perceived debt for illegal drugs.
In the opinion which it rendered in this case, the Court of Appeals exercised
studious review of our decisions in Spratt and Lawrence, as well as other appellate
decisions which it considered to involve issues which are similar to those which exist
in the present case. The lower appellate court went on to conclude that it “remain[ed]
bound to follow and apply Spratt” in the resolution of this case.
In Spratt, the defendant entered a convenience store, brought items of
merchandise to the cashier’s counter for apparent purchase, and when the cashier
opened the cash register at the counter to conduct the transaction, defendant put his
hand in the cash register drawer in which money was located. Defendant wielded a
pistol, told the cashier “it was a stickup,” demanded the money, and reached for it.
The cashier was able to foil defendant’s effort to obtain the money from the store’s
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cash register, and defendant left without the money. Defendant was charged with the
offense of attempt to commit armed robbery and was found by a jury to be guilty of
the charged crime. In this Court’s issued opinion in which no error was found in
defendant’s conviction upon his appeal, we discussed the concept of felonious intent,
noting that it is an essential element of the offense of attempt to commit armed
robbery. In this Court’s discussion of felonious intent in Spratt, we cited Lawrence for
the proposition that
where the evidence relied on by defendant tends to admit
the taking but to deny that it was with felonious intent, it
is essential that the court fully define the ‘felonious intent’
contended for by the State and also explain defendant’s
theory as to the intent and purpose of the taking, in order
that the jury may understandingly decide between the
contentions of the State and defendant on that point . . . .
For instance, as in Lawrence, defendant may contend that
his conduct in taking the property amounts only to a
forcible trespass.
265 N.C. at 526, 144 S.E.2d at 571 (citation omitted).
In the course of our discussion of the role of the element of felonious intent in
different criminal offenses and our rumination about the courts’ assessment of the
element of felonious intent in light of different theories of criminal culpability in
Spratt, we offered the following observation which the Court of Appeals mistakenly
treats in the instant case as our dispositive holding in Spratt:
A defendant is not guilty of robbery if he forcibly takes
personal property from the actual possession of another
under a bona fide claim of right or title to the property, or
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for the personal protection and safety of defendant and
others, or as a frolic, prank or practical joke, or under color
of official authority.
Id. at 526–27, 144 S.E.2d at 571.
The defendant in Lawrence—the case which Spratt primarily relies on in its
discussion of felonious intent—was the operator of a motor vehicle who offered a ride
to the prosecuting witness Wimbley, a member of the United States Marine Corps
who was dressed in civilian clothes on this occasion, as Wimbley walked along the
street after his own motor vehicle experienced mechanical failure. Wimbley accepted
the offer of a ride and joined the defendant and a passenger in the vehicle. During
the journey, the defendant and Wimbley bought some whiskey with all three
individuals consuming some of it. Later, the defendant stopped the vehicle on a dead-
end road with defendant and his original passenger both striking Wimbley with their
fists. The defendant said to Wimbley, “You owe me something,” to which Wimbley
replied, “What do I owe you . . . I would be glad to pay you.” The defendant then said,
“That’s okay, I’ll get it myself,” and then forcibly seized Wimbley’s wallet and removed
money from it. The defendant was charged with the offenses of robbery and felonious
assault. A jury found the defendant guilty of robbery. On appeal, this Court
determined that the defendant was entitled to a new trial because the trial court
erred by instructing the jury to determine if there was an unlawful taking rather
than giving a legal explanation of the term “felonious taking” and directing the jury
to apply it to the facts. Lawrence, 262 N.C. at 168, 136 S.E.2d at 600. This conclusion
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was reached upon our evaluation of the defendant’s contention in Lawrence that his
actions amounted only to a forcible trespass, a crime which required an unlawful
taking but no felonious intent, which he had the right to have a jury to consider upon
proper instructions. Id.This review of the respective facts, analyses, and outcomes of the two cases
decided by this Court upon which the Court of Appeals expressly relies in its decision
in the present case—Spratt and Lawrence—serves to place them in proper context
and assist in determining how they apply in this case. While we recognized in Spratt
the pivotal nature of felonious intent as an element of the offense of attempt to
commit armed robbery, the defendant in Spratt, in attempting to take money from a
convenience store’s cash register while employing a firearm, was not attempting to
forcibly take personal property from the actual possession of another under a bona
fide claim of right or title to the property—as defendant contends that defendant was
undertaking in the instant case in attempting to obtain money that he considered to
belong to him from Leisure. This distinction between Spratt and the current case
renders Spratt inapplicable here, including the passage from our opinion in Spratt
which this Court intended to be illustrative and which the Court of Appeals construed
here to be dispositive. Lawrence, the predecessor of Spratt, is distinguishable from,
and hence inapplicable to, the present case in that, although the element of felonious
intent constituted an issue in Lawrence just as it does in the present case, the position
adopted by defendant in Lawrence rested on an alternative and lesser measure of
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criminal culpability regarding the intent which he harbored concerning the money,
while the position adopted by defendant in the instant case fully rests on a total lack
of criminal culpability regarding the intent which he harbored concerning the money.
Significantly neither Spratt, nor Lawrence, nor any other case in this state has
heretofore authorized a party to legally engage in “self-help” by virtue of the exercise
of a bona fide claim of right or title to property which is the subject of an illegal
transaction. Here, defendant was involved with other individuals in an effort to
regain money which was the subject of an illegal transaction involving the purchase
of controlled substances.1 In this regard, the Court of Appeals has erroneously
extended beyond existing legal bounds the right of a party to engage in “self-help”
and to forcibly take personal property from the actual possession of another under a
bona fide claim or right to the property. Accordingly, with regard to the trial court’s
denial of defendant’s motion to dismiss the charge of conspiracy to commit robbery
with a dangerous weapon, we conclude that the trial court did not err.
We likewise hold that the trial court reached a correct ruling with respect to
defendant’s motion to dismiss the charge of felonious breaking or entering. “The
essential elements of felonious breaking or entering are (1) the breaking or entering
(2) of any building (3) with the intent to commit any felony or larceny therein.”
1 Indeed, the nature of defendant’s transaction and agreement with Leisure means
that determining the existence of a bona fide claim would likely require the application of
commercial law principles to an illegal drug deal. We cannot imagine that the common law
tradition or the General Assembly would require such an approach.
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Williams, 330 N.C. at 585, 411 S.E.2d at 818. As already discussed, the trial court
properly denied defendant’s motion to dismiss the charge of conspiracy to commit
robbery with a dangerous weapon because the record contained evidence tending to
show that defendant possessed the requisite felonious intent to support the charge.
Since both of the issues presented to this Court concern whether defendant possessed
the same requisite felonious intent necessary to support both of his convictions, we
conclude that the trial court also properly denied defendant’s motion to dismiss the
charge of felonious breaking or entering.
Conclusion
For the reasons stated, we find no error in defendant’s convictions of the
offense of conspiracy to commit armed robbery with a dangerous weapon and the
offense of felonious breaking or entering. Due to the existence of sufficient evidence
regarding felonious intent, the trial court properly denied defendant’s motions to
dismiss the charges against him. Accordingly, we reverse the decision of the Court of
Appeals and order defendant’s convictions to be reinstated.
REVERSED.
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