State v. Mann ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-819
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Rockingham County
No. 10 CRS 54259
MARC ALBERT MANN
Appeal by defendant from judgment entered 17 January 2013
by Judge Edwin G. Wilson in Rockingham County Superior Court.
Heard in the Court of Appeals on 31 March 2014.
Roy Cooper, Attorney General, by M. Lynne Weaver, Special
Deputy Attorney General, for the State.
Kimberly P. Hoppin for defendant-appellant.
DAVIS, Judge.
Defendant Marc Albert Mann (“Defendant”) appeals from the
judgment entered after a jury found him guilty of robbery with a
dangerous weapon and interfering with an emergency
communication. On appeal, Defendant contends that (1) the trial
court erred by denying his motion to dismiss the robbery charge;
and (2) the State failed to present sufficient evidence that
Virginia offenses included in his prior record level calculation
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were substantially similar to North Carolina offenses. After
careful review, we find that Defendant received a fair trial
free from error but remand for a new sentencing hearing.
Factual Background
On 14 November 2010, Sally Lopez (“Ms. Lopez”) was working
at a Dollar General store in Eden, North Carolina when Defendant
entered the store with April Cannoy (“Ms. Cannoy”) and another
man. The other man had driven Defendant and Ms. Cannoy to the
store. Ms. Lopez had a key to the office where the store’s
video surveillance equipment was located and was responsible for
monitoring shoplifting. Ms. Lopez noticed Ms. Cannoy had a
large, mostly empty pocketbook and had placed the bag in the
child seat of her shopping cart. Defendant and Ms. Cannoy
walked around the store together, and Ms. Lopez used the video
equipment to observe Ms. Cannoy pick up candles and batteries
and place them in her shopping cart. Defendant and Ms. Cannoy
left without paying for the items, and Ms. Lopez followed them
out of the store.
When Ms. Lopez confronted them, Ms. Cannoy denied that she
had taken anything. Ms. Lopez threatened to call the police,
and when she took out her phone, Defendant pulled the phone out
of her hand, took out the battery, and broke the phone.
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Defendant then held a switchblade-style knife to Ms. Lopez’s
forehead and threatened to kill her. Ms. Cannoy tried to pull
Defendant away and told him they should leave. Ms. Cannoy and
Defendant then left with the man who had driven them to the
store. Ms. Lopez ran back in the store and called 911.
At trial, Ms. Cannoy testified that she and Defendant stole
items every time they went shopping together and that she put
her pocketbook in the child seat of the shopping cart because it
made it easier to steal. Ms. Cannoy admitted that she stole the
candles, the batteries, and a necklace and stated that Defendant
knew she took these items from the store.
The jury found Defendant guilty of robbery with a dangerous
weapon and interfering with an emergency communication. The
trial court consolidated the convictions into one judgment and
sentenced Defendant to 72 to 96 months imprisonment. Defendant
gave timely notice of appeal.
Analysis
I. Denial Of Motion to Dismiss
In his first argument on appeal, Defendant contends the
trial court erred by denying his motion to dismiss the robbery
with a dangerous weapon charge because the evidence did not
support the State’s theory that Defendant acted in concert with
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Ms. Cannoy or that he used force concomitant with the taking of
property. We disagree.
“When a defendant moves to dismiss a charge against him on
the ground of insufficiency of the evidence, the trial court
must determine whether there is substantial evidence of each
essential element of the offense charged and of the defendant
being the perpetrator of the offense.” State v. Garcia, 358
N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation and
quotation marks omitted), cert. denied, 543 U.S. 1156, 161
L.Ed.2d 122 (2005). “In reviewing challenges to the sufficiency
of evidence, [the appellate court] must view the evidence in the
light most favorable to the State, giving the State the benefit
of all reasonable inferences.” State v. Scott, 356 N.C. 591,
596, 573 S.E.2d 866, 869 (2002) (citation omitted).
The first part of Defendant’s argument is that the State
offered insufficient evidence that he acted in concert with Ms.
Cannoy. “To act in concert means to act together, in harmony or
in conjunction one with another pursuant to a common plan or
purpose.” State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390,
395 (1979) (citation omitted). “[I]f two persons join in a
purpose to commit a crime, each of them, if actually or
constructively present, is not only guilty as a principal if the
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other commits that particular crime, but he is also guilty of
any other crime committed by the other in pursuance of the
common purpose . . . or as a natural or probable consequence
thereof.” State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,
286 (1991) (citation and quotation marks omitted).
Viewed in the light most favorable to the State, there was
ample evidence that Defendant acted in concert with Ms. Cannoy
to commit the robbery. The State introduced evidence that
Defendant arrived at the store with Ms. Cannoy, moved through
the store with Ms. Cannoy as she took items, left the store with
Ms. Cannoy without paying for those items, and then threatened
Ms. Lopez with a knife in response to her confrontation about
the stolen merchandise. Ms. Cannoy also testified that she and
Defendant frequently stole items from stores together, and that
Defendant knew she was taking the items from the store. We
conclude that this constituted sufficient evidence of concerted
action.
The second part of Defendant’s argument is that the
evidence did not establish that his use of force was concomitant
with the taking of property. “To obtain a conviction for the
offense of armed robbery, the State must prove three elements:
(1) the unlawful taking or attempted taking of personal property
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from another; (2) the possession, use or threatened use of
firearms or other dangerous weapon, implement or means; and (3)
danger or threat to the life of the victim.” In re Stowe, 118
N.C. App. 662, 664, 456 S.E.2d 336, 338 (1995) (citation and
quotation marks omitted); see also N.C. Gen. Stat. § 14-87(2011).
The element of violence must precede or be concomitant with
the taking in order for the crime of robbery with a dangerous
weapon to be committed. The taking is not complete until the
thief removes the property from the victim’s possession. State
v. Sumpter, 318 N.C. 102, 111, 347 S.E.2d 396, 401 (1986).
“Property is in the legal possession of a person if it is under
the protection of that person.” State v. Bellamy, 159 N.C. App.
143, 149, 582 S.E.2d 663, 668, cert. denied, 357 N.C. 579, 589
S.E.2d 130 (2003) (citation omitted). “Thus, just because a
thief has physically taken an item does not mean that its
rightful owner no longer has possession of it.” State v.
Barnes, 125 N.C. App. 75, 79, 479 S.E.2d 236, 238, aff’d per
curiam, 347 N.C. 350, 492 S.E.2d 355 (1997). As a result, this
Court has held that a robbery occurs when the taking of property
and violent acts are part of a “continuous transaction,” even if
the violence occurs after the Defendant has physically taken the
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property. State v. Porter, 198 N.C. App. 183, 188, 679 S.E.2d
167, 170 (2009).
Once again, viewed in the light most favorable to the
State, the evidence was sufficient to withstand Defendant’s
motion to dismiss. Ms. Lopez confronted Defendant and Ms.
Cannoy about having taken the stolen merchandise immediately
after they exited the store. Defendant responded to her inquiry
by knocking the phone from her hand and placing a knife against
her forehead. Defendant’s actions and threat of violence caused
Ms. Lopez to retreat to the store before calling for help.
Accordingly, we hold that there was sufficient evidence to
support the trial court’s denial of Defendant’s motion to
dismiss the robbery with a dangerous weapon charge.
II. Determination of Defendant’s Prior Record Level
In Defendant’s final argument, he contends the trial court
erred by including points for Virginia offenses in its prior
record level calculation where the State failed to present
sufficient evidence that those offenses were substantially
similar to North Carolina offenses. The State concedes that it
cannot distinguish this case from State v. Burgess, 216 N.C.
App. 54, 715 S.E.2d 867 (2011), and we agree.
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In Burgess, the defendant stipulated to a prior record
level calculation that was based on the State’s proffered prior
record level worksheet, which included offenses from other
jurisdictions. The State offered no further evidence to support
the trial court’s prior record level calculation. Id. at 57,
715 S.E.2d at 870. We held that the State failed to meet its
burden of proof under N.C. Gen. Stat. § 15A-1340.14(e) and State
v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006), because a
defendant cannot stipulate to the issue of whether out-of-state
convictions were substantially similar to North Carolina
offenses. Accordingly, we remanded for resentencing. Id. at
252, 623 S.E.2d at 602.
Similarly, here Defendant stipulated to the contents of the
State’s prior record level worksheet through counsel. All seven
of Defendant’s prior record level points were based on Virginia
offenses. Three of those points were assigned for Class 1
misdemeanors, and the State offered no further evidence that
they were substantially similar to North Carolina Class 1
misdemeanors. The default classification for misdemeanors from
another jurisdiction, in the absence of such evidence, is Class
3. N.C. Gen. Stat. § 15A-1340.14(e) (2011). Without the three
points improperly assigned for those misdemeanors based on
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Defendant’s ineffective stipulation, Defendant’s prior record
level would be II rather than III. N.C. Gen. Stat. § 15A-
1340.14(c). Accordingly, we must remand for resentencing.
Burgess, 216 N.C. App. at 57, 715 S.E.2d at 870.
Conclusion
For the reasons stated above, we find that Defendant
received a fair trial free from prejudicial error but remand for
a new sentencing hearing.
NO ERROR IN PART; REMANDED FOR RESENTENCING.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).