State v. Lemon ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citat ion is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1144
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Forsyth County
No. 11 CRS 57557
DORSEY ALPHONZO LEMON, JR.
Appeal by Defendant from Judgment entered 10 August 2012 by
Judge Richard W. Stone in Forsyth County Superior Court. Heard
in the Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Alexandra M. Hightower, for the State.
Anne Bleyman for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
On 23 January 2012, Defendant Dorsey Alphonzo Lemon, Jr.,
was indicted on one count of robbery with a dangerous weapon.
Defendant was tried during the 6 August 2012 Criminal Session of
Forsyth County Superior Court. The evidence at trial tended to
show the following:
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Theodore Hardy operated a “drink house,” where he sold
alcohol, cigarettes, candy, and chips out of his home. Hardy was
73 years old, retired, and disabled. On 29 July 2011, Tyrone
Carroll Woods visited Hardy and asked to borrow money. Hardy
showed Woods, a frequent visitor, about $200 to $300 in cash,
but refused to lend it to him. Woods sat with Hardy for ten to
fifteen minutes watching television and then left.
Shortly thereafter, a man, later identified as Defendant,
entered Hardy’s house and said, “This is a robbery,” while
pointing a pistol at Hardy. Defendant had short dreadlocks and
was wearing a green shirt. At one point Defendant shouted out
the door to Woods, who was then sitting in a burgundy Chevrolet
Malibu in front of the house, and asked whether he should use a
“wire” on Hardy. This was the same burgundy Chevrolet Malibu
that Melissa Yvette Porch had lent to Defendant about 2:30 p.m.
earlier that day. Defendant took Hardy’s wallet and demanded
more money. When Hardy told him that he did not have any more
money, Defendant made Hardy go into the bathroom. Hardy then
heard Defendant rummaging around in his bedroom before coming
back with a cut-up wire clothes hanger. Defendant put the wire
between Hardy’s fingers, threatening him in order to find more
money. When Hardy refused, the man left the house.
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At 3:49 p.m., Winston-Salem Police Department Corporals
Eric Johnson and R.T. Phillips received a call about an armed
robbery at Hardy’s house. On his way to the scene, Cpl. Johnson
passed a burgundy Chevrolet Malibu traveling in the opposite
direction. The car turned into the entrance of Packaging Lines,
Incorporated, a plant where worker Chris Allen Peele saw the car
stop quickly at the loading area. It was approximately 4:00 p.m.
when he saw the passenger, a black man with dreadlocks, wearing
a green shirt, get out of the car, jump onto the dock, and run
down the back side of the plant. Peele saw the man make a
throwing motion as he ran past some pallets in the loading area.
When Cpl. Johnson pulled up to the car, there was no
passenger inside. Woods, the man who had tried to borrow money
from Hardy earlier, was sitting in the driver’s seat next to a
deposit bag that had a wallet with Hardy’s identification in it
and several cards Hardy later identified as his. A toy water
pistol was also in the car.
At the same time, Porch received a call from Defendant, who
told her she needed to pick up her car. Defendant also requested
that Porch ask her friend to drive him to Porch’s mother’s
house. When Porch arrived at the plant, she found her car
surrounded by police.
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In response to the robbery dispatch call, Cpl. Phillips
began canvassing the neighborhood and observed Defendant, with
short dreadlocks, wearing a green shirt, standing on the porch
of a house later identified as belonging to Porch’s mother. A
car was leaving the driveway when Defendant went into the house
and came out a few minutes later, sweating profusely. Cpl.
Phillips searched and arrested Defendant.
Bowles, a forklift operator at Packaging Lines,
Incorporated, found a gun on the floor between the pallets on
the loading dock four days after the robbery occurred. Other
employees had access to the area, but Bowles was the only person
who moved pallets. Bowles took the gun to the plant manager, who
then gave it to the Winston-Salem Police Department. The gun was
a Lorcin 9 mm pistol with two rounds in it.
At the close of all the evidence, Defendant moved to
dismiss the charge of robbery with a dangerous weapon, arguing
that there was not substantial evidence of each essential
element of the charge. The court denied that motion. The jury
found Defendant guilty of robbery with a dangerous weapon. The
jury found the existence of four aggravating factors, and
Defendant was sentenced to 96 to 125 months in prison. Defendant
appeals.
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Discussion
Defendant argues that the trial court erred (1) in denying
his motion to dismiss the charge of robbery with a dangerous
weapon, (2) by instructing the jury on the doctrine of recent
possession, and (3) in sentencing him based on four aggravating
factors. We find no error.
I. Motion to Dismiss
Defendant first argues that there was insufficient
evidence that he committed robbery with a dangerous weapon and,
therefore, that his motion to dismiss should have been granted.
We disagree.
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007).
Upon [the] defendant’s motion for dismissal,
the question for the Court is whether there
is substantial evidence (1) of each
essential element of the offense charged, or
of a lesser offense included therein, and
(2) of [the] defendant’s being the
perpetrator of such offense. If so, the
motion is properly denied.
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)
(citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d
150 (2000). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
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conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980). The trial court must consider all evidence in the
light most favorable to the State, “giving the State the benefit
of every reasonable inference and resolving any contradictions
in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211,
223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818(1995).
In order to establish that Defendant committed robbery with
a dangerous weapon, in violation of N.C. Gen. Stat. § 14-87(a),
the State must prove the following essential elements: “(1) the
unlawful taking or an 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. Small, 328
N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (citations omitted).
“[W]here the instrument used [by the defendant] appears to be,
but may not in fact be, a firearm or other dangerous weapon
capable of endangering or threatening the life of another,” our
Supreme Court has laid out the following rules to be applied
when determining whether the evidence of armed robbery is
sufficient to be submitted to the jury:
(1) When a robbery is committed with what
appeared to the victim to be a firearm or
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other dangerous weapon capable of
endangering or threatening the life of the
victim and there is no evidence to the
contrary, there is a mandatory presumption
that the weapon was as it appeared to the
victim to be. (2) If there is some evidence
that the implement used was not a firearm or
other dangerous weapon which could have
threatened or endangered the life of the
victim, the mandatory presumption disappears
leaving only a permissive inference, which
permits but does not require the jury to
infer that the instrument used was in fact a
firearm or other dangerous weapon whereby
the victim’s life was endangered or
threatened. (3) If all the evidence shows
the instrument could not have been a firearm
or other dangerous weapon capable of
threatening or endangering the life of the
victim, the armed robbery charge should not
be submitted to the jury.
State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897
(1986).
Defendant argues that the trial court erred in denying his
motion to dismiss because there was insufficient evidence that
he used or threatened to use a firearm or other dangerous
weapon. Noting that the Lorcin 9 mm pistol was found at the
packaging plant four days after the robbery, he argues that
others had access to the area where the pistol was discovered
and that Peele never saw Defendant throw a pistol, but instead
only saw him make a throwing motion. Defendant also argues that
there was evidence to suggest that the weapon used in the
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robbery was actually a toy gun and not a firearm or other
dangerous weapon. We are not persuaded.
Whether an instrument is a firearm or other dangerous
weapon is judged by the victim of the robbery from the
appearance of the instrument and the manner in which it is used.
State v. Thompson, 297 N.C. 285, 288, 254 S.E.2d 526, 528
(1979). Here, the evidence shows that Defendant robbed Hardy in
his home and brandished a handgun, which Hardy described as
“blue steel” or a pistol dark in color. Hardy never qualified
his description of the gun as potentially being fake; rather, he
consistently identified it as a dark handgun. Additionally,
Hardy testified that he was afraid because Defendant had the
“weapon” during the robbery. Shortly thereafter, a witness saw
Defendant run across a loading dock and make a throwing gesture
toward the area where an employee later found a loaded gun. The
fact that a real pistol was found close to where Defendant made
the throwing motion supports Hardy’s consistent testimony that
Defendant used a real firearm at the time of the robbery. This
constitutes substantial evidence that Defendant used or
threatened to use a firearm or other dangerous weapon during the
robbery. Accordingly, Defendant’s argument that the evidence of
a dangerous weapon was insufficient is overruled.
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II. Doctrine of Recent Possession
Second, Defendant argues that the trial court erred in
instructing the jury on the doctrine of recent possession
because the State did not prove that the stolen items were in
Defendant’s “custody and control to the exclusion of others, or
that [Defendant] possessed the property recently after the
theft.” Again, we are unpersuaded.
This Court reviews a trial court’s decision regarding jury
instructions de novo. State v. Osorio, 196 N.C. App. 458, 466,
675 S.E.2d 144, 149 (2009). A jury instruction is proper if it
is based on “some reasonable view of the evidence.” State v.
Garner, 330 N.C. 273, 295, 410 S.E.2d 861, 874 (1991) (citation
omitted).
Under the doctrine of recent possession, possession of
recently stolen property creates a presumption that the
possessor stole the property. State v. Maines, 301 N.C. 669,
673, 273 S.E.2d 289, 293 (1981). “Although this doctrine is
often applied in the context of larceny, it also applies to
armed robbery.” State v. Lee, 213 N.C. App. 392, 395, 713 S.E.2d
174, 177 (2011) (citation omitted). In order to raise the
presumption that the possessor is guilty under the doctrine of
recent possession, the State must prove that “(1) the property
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described in the indictment was stolen; (2) the stolen goods
were found in [the] defendant’s custody and subject to his
control and disposition to the exclusion of others . . . ; and
(3) the possession was recently after the larceny [or robbery.]”
Maines, 301 N.C. at 674, 273 S.E.2d at 293 (citations omitted).
Defendant argues that the State did not meet its burden to
prove the second and third prongs of the doctrine of recent
possession, exclusive and recent possession, because he was
“never found in possession of the bag or wallet.” Defendant’s
argument is without merit.
“Exclusive possession does not necessarily mean sole
possession. Exclusive possession means possession to the
exclusion of all persons not party to the crime.” State v.
Foster, 149 N.C. App. 206, 209, 560 S.E.2d 848, 851 (citation
and internal quotation marks omitted), cert. denied, 355 N.C.
496, 564 S.E.2d 48 (2002). “There is no specific period . . .
beyond which possession can no longer be considered ‘recent.’
Rather, the term is a relative one and will depend on the
circumstances of each case.” State v. Wilson, 313 N.C. 516, 536,
330 S.E.2d 450, 464 (1985) (holding that the defendant’s
possession of items two to four weeks after an armed robbery
committed with a co-conspirator was sufficiently close in time
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to be considered “recent”); see also State v. Gonzalez, 311 N.C.
80, 88, 316 S.E.2d 229, 233 (1984) (holding that the defendant’s
possession of stolen property within several hours was
“recent”).
The State’s evidence shows that Cpl. Johnson followed
Defendant’s driver and accomplice, Woods, into Packaging Lines,
Incorporated, and found him in the car that Defendant had
borrowed from Porch only an hour and a half before the robbery
took place. A witness saw a man matching Defendant’s description
jump from the passenger seat of the car, run down the back side
of the plant, and make a throwing motion toward an area where a
gun was found four days later. Items stolen during the robbery
were next to Woods when police found them. The dispatch call to
police from Hardy’s house occurred at 3:47 p.m. Shortly after
Cpl. Johnson received the call at 3:49 p.m., he intercepted the
car described in the robbery. Defendant called Porch shortly
after 4:00 p.m. and told her where to retrieve her car. Only a
short period of time passed before Cpl. Phillips then located
Defendant at Porch’s mother’s house and arrested him. The time
from robbery to apprehension was less than one hour.
Woods and Defendant were the only people who had access to
the stolen property in the brief period between when the robbery
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took place and when the police followed the car at the plant and
found the stolen property. Because Woods and Defendant acted in
concert to commit the robbery, Defendant can be considered to
have had exclusive possession of the stolen goods whether or not
they were found in his actual possession. See Foster, 149 N.C.
App. at 209, 560 S.E.2d at 851. The fact that the stolen
property was recovered only minutes after it was stolen makes it
sufficiently recent to be considered recent possession.
Therefore, the State’s evidence was sufficient to justify the
trial court’s jury instruction on the doctrine of recent
possession. Defendant’s argument is overruled.
III. Sentencing
Lastly, Defendant argues that the trial court erred in
submitting the following three aggravating factors to the jury:
(1) that the victim was very old, (2) that the victim was
physically infirm, and (3) that the victim was handicapped.1
Defendant argues that Hardy’s age of 73 years was not sufficient
to establish the “very old” aggravating factor. Additionally,
Defendant argues that the trial court did not sufficiently
1
Defendant stipulated to the fourth aggravating factor,
admitting that he had violated his parole “during the 10-year
period prior to the commission of the offense for which
[Defendant was] being sentenced.”
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differentiate between the “physically infirm” and “handicapped”
factors and therefore committed error. We disagree.
“When a defendant assigns error to the sentence imposed by
the trial court, our standard of review is ‘whether [the]
sentence is supported by evidence introduced at the trial and
sentencing hearing.’” State v. Deese, 127 N.C. App. 536, 540,
491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-
1444(a1)). Section 15A-1340.16 states:
(a) . . . The court shall consider evidence
of aggravating or mitigating factors present
in the offense that make an aggravated or
mitigated sentence appropriate, but the
decision to depart from the presumptive
range is in the discretion of the
court. . . .
. . .
(b) . . . If the jury, or with respect to an
aggravating factor under [section] 15A-
1340.16(d)(12a) or (18a), the court, finds
that aggravating factors exist or the court
finds that mitigating factors exist, the
court may depart from the presumptive range
of sentences specified in [section] 15A-
1340.17(c)(2). If aggravating factors are
present and the court determines they are
sufficient to outweigh any mitigating
factors that are present, it may impose a
sentence that is permitted by the aggravated
range described in 15A-1340.17(c)(4). If the
court finds that mitigating factors are
present and are sufficient to outweigh any
aggravating factors that are present, it may
impose a sentence that is permitted by the
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mitigated range described in [section] 15A-
1340.17(c)(3).
N.C. Gen. Stat. § 15A-1340.16 (2013).
Defendant cites State v. Hines, 314 N.C. 522, 525, 335
S.E.2d 6, 8 (1985), for the proposition that “[a]ge should not
be considered as an aggravating factor in sentencing unless it
makes the defendant more blameworthy than he . . . already is as
a result of committing a violent crime against another person.”
Id. This is true. However, the Hines opinion also states that
“[i]n cases . . . involving victims near the beginning or end of
the age spectrum, the prosecution may establish vulnerability
merely by relating the victim’s age and the crime committed.”
Id. at 526, 335 S.E.2d at 8 (finding the 62-year-old victim was
not “very old”). In such a circumstance, it is not necessary for
the State to show exactly how the defendant is more blameworthy.
See id. In Hines, however, the victim was a 62-year-old man in
good health who worked as a brick mason until the five years
preceding his death. Id. The victim’s retirement was due to a
work-related injury and not because of his age. Id. Accordingly,
the Court found that he was not “very old.” Id.Since Hines, our Supreme Court has stated that “[t]he
vulnerability accompanying advanced age is not caused by
physical disability alone, but encompasses the slowing of
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reflexes and lessening acuity of senses which render older
citizens relatively defenseless against predators looking for
unprotected targets.” State v. Davis, 325 N.C. 607, 633, 386
S.E.2d 418, 432 (1989), cert. denied, 496 U.S. 905, 110 L. Ed.
2d 268 (1990). In that case, a 70-year-old, physically infirm
woman was murdered by the defendant who, through frequent visits
to her nursing home, had learned that a stroke had left the
woman with atrophied muscles and a limp, making her more
vulnerable to attack. Id. at 613–15, 386 S.E.2d at 420–21. There
the Court found that age, “discrete from that of the victim’s
physical infirmity, support[ed] the aggravation of the robbery
by virtue of the victim’s age.” Id. at 633, 386 S.E.2d at 432.
Like the defendant in Davis, Woods had several
opportunities to spend time with Hardy and assess his
vulnerabilities. Unlike the victim in Hines, Hardy was not a
healthy man at the time of the robbery. Hardy testified that he
was disabled, walked with a cane, coughed, shook, and that
walking around his home took him a very long time. While Hardy’s
physical limitations might speak to the aggravating factors of
physical infirmity and being handicapped, they may also help
draw a distinction between victims when considering the
aggravating factor of advanced age. Accordingly, the trial court
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did not err in submitting the aggravating factor of advanced age
to the jury.
Defendant also argues that there was not enough distinction
between the evidence that Hardy was both “physically infirm” and
“handicapped” for those factors to be admitted separately to the
jury. We need not resolve this question here.
Defendant stipulated to the fact that he had violated his
parole within the 10 years preceding the current offense. In
addition, we have already determined that the trial court
properly submitted the age factor to the jury. The only
mitigating factor the trial court found was that it appeared
Defendant had a good support system. Whether the trial court
erred in separately submitting the last two aggravating factors
to the jury or not, the existing aggravating factors were
sufficient for the trial court to determine, in its discretion,
that the “good support system” mitigating factor was outweighed.
See N.C. Gen. Stat. § 15A-1340.16; see also State v. McDonald,
163 N.C. App. 458, 463, 593 S.E.2d 793, 796 (holding that,
according to N.C. Gen. Stat. § 15A-1340.16, it was within the
discretion of the court to sentence a defendant in the maximum
statutory range based on weighing the aggravating and mitigating
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factors), disc. review denied, 358 N.C. 548, 599 S.E.2d 910(2004). Therefore, we find no error.
NO ERROR.
Judges BRYANT and DILLON concur.
Report per Rule 30(e).