State v. Brooks ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-663
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 11 CRS 228136
BERVIN LAQUINT BROOKS
Appeal by Defendant from judgment entered 16 January 2013
by Judge Donald W. Stephens in Superior Court, Wake County.
Heard in the Court of Appeals 19 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Lisa Bradley, for the State.
Irving Joyner for Defendant.
McGEE, Judge.
The State’s evidence tended to show that on 17 November
2011, Tahsin Haopshy (“Haopshy”) was working as a Loss
Prevention Officer at the Rugged Warehouse, a retail clothing
store in Raleigh (“the store”). At approximately 2:25 p.m.,
while monitoring the store’s security cameras, Haopshy noticed a
man, later identified as Bervin Laquint Brooks (“Defendant”), in
the ladies’ department carrying several girls’ skirts, and a
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men’s jacket. Haopshy observed Defendant push the skirts down
the front of his pants while attempting to use the jacket to
cover his actions.
In order to confront Defendant, Haopshy left the cameras
and saw Defendant leaving the store. Haopshy followed
Defendant from the store into the parking lot where he
approached Defendant and said: “Sir, I am with loss prevention
for the store; I need you to stop and talk about the merchandise
you have down your pants.” Defendant did not respond, so Haopshy
called out again. Defendant then turned toward Haopshy and held
an electric stun device threateningly in the direction of
Haopshy, who was about three feet from Defendant and moving
toward Defendant. Haopshy then heard “the sound of electricity
crackling” and saw “an arc” when the stun device was activated.
Haopshy testified that Defendant repeated: “Back off, back
away,” as Defendant pointed the stun device at Haopshy “and
lunged towards [him] with it.” Haopshy testified: “I backed
off[,]” and Defendant “took off to his car.” Haopshy noted the
make and model of the vehicle in which Defendant drove away, and
noted that the vehicle had a temporary North Carolina tag.
Defendant was subsequently arrested and identified as the
man in the surveillance videos, and as the man Haopshy had
confronted in the parking lot. Defendant was indicted for
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common law robbery on 20 February 2012 and, following a jury
trial, was found guilty on 16 January 2013. Defendant was
sentenced to an active sentence of twelve to fifteen months.
Defendant appeals.
I.
In Defendant’s first argument, he contends the trial court
erred by refusing to dismiss the charge of common law robbery at
the close of all the evidence. We disagree.
The standard the trial court applies when a defendant moves
to dismiss a charge is as follows:
“When a defendant moves for dismissal, the
trial court is to determine whether there is
substantial evidence (a) of each essential
element of the offense charged, or of a
lesser offense included therein, and (b) of
defendant's being the perpetrator of the
offense.” “Whether the evidence presented
constitutes substantial evidence is a
question of law for the trial court.”
Evidence is deemed “substantial” if the
evidence is “existing and real, not just
seeming or imaginary.” In reviewing
“the sufficiency of circumstantial
evidence, the question for the
Court is whether a reasonable
inference of defendant's guilt may
be drawn from the circumstances.
If so, it is for the jury to
decide whether the facts, taken
singly or in combination, satisfy
them beyond a reasonable doubt
that the defendant is actually
guilty.”
In making its determination, the trial court
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must consider all evidence admitted, whether
competent or incompetent, 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, 192-93, 451 S.E.2d 211, 222-23
(1994) (citations omitted). We review de novo the trial court’s
ruling on a motion to dismiss. State v. Smith, 186 N.C. App.
57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). Robbery is
a common law offense, which is generally described as: “the
felonious, non-consensual taking of money or personal property
from the person or presence of another by means of violence or
fear.” State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270
(1982) (citations omitted).
A.
Defendant first argues that the indictment was fatally
defective. Defendant contends that the indictment failed to
properly allege the owner of the personal property – the skirts
– that Defendant was charged with taking. The challenged
indictment reads as follows:
THE JURORS FOR THE STATE UPON THEIR OATH
PRESENT that on or about the 17th day of
November 2011, in Wake County, the defendant
named above [did] unlawfully, willfully, and
feloniously steal, take and carry away,
three female skirts, having a value of
$27.97 in US currency, from the person and
presence of Tahsin Haopshy by means of an
assault upon him consisting of the forcible
and violent taking of the property. This
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was done in violation of N.C.G.S. § 14-87.1.
Defendant argues that, because larceny is a lesser included
offense of common law robbery and a larceny indictment must
allege the owner of the stolen property, this indictment for
common law robbery, which does not state the owner of the
skirts, is fatally defective. Though Defendant is correct in
stating that larceny is a lesser included offense of common law
robbery, State v. White, 322 N.C. 506, 514, 369 S.E.2d 813, 817
(1988), and that the general rule is that a greater offense must
have all the essential elements of a lesser included offense,
Id. at 513-14, 369 S.E.2d at 816-17, our Supreme Court has
decided that this requirement does not apply for larceny and
common law robbery. Id. at 517, 369 S.E.2d at 819, see also Id.
at 519, 369 S.E.2d at 820 (Justice Webb dissenting).
Concerning indictments for common law robbery, our Supreme
court has held that
it is not necessary that ownership of the
property be laid in a particular person in
order to allege and prove . . . robbery.
The gist of the offense of robbery is the
taking by force or putting in fear. An
indictment for robbery will not fail if the
description of the property is sufficient to
show it to be the subject of robbery and
negates the idea that the accused was taking
his own property.
State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972)
(citations omitted). Defendant’s indictment for common law
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robbery was not defective because it failed to properly identify
the owner of the property, and the trial court did not err in
refusing to dismiss the common law robbery charge.
B.
Defendant further argues that there was not sufficient
evidence presented at trial that “Haopshy was ever placed in
fear and apprehension or was, otherwise, the victim of a
forcible and violent taking of the property[.]” The evidence at
trial, taken in the light most favorable to the State, showed
that, after observing Defendant conceal skirts belonging to the
store in Defendant’s pants, Haopshy followed Defendant out to
the parking lot. Haopshy confronted Defendant about the stolen
merchandise concealed in Defendant’s pants, and Defendant
“turned around and pulled a device out of his pocket, out of his
hoody pocket, and pointed it at [Haopshy].” Haopshy heard the
device crackle and saw electricity arcing from the end of the
device and recognized it as a stun device. Haopshy testified
that Defendant said: “Back off.” Haopshy further testified that
Defendant “just repeated that same thing, [b]ack off, back away,
as he pointed this device at me and lunged towards me with it.”
Haopshy retreated and Defendant “took off” to his car with the
stolen merchandise.
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We hold that this evidence was sufficient to show the non-
consensual taking of personal property from the presence of
another by means of fear. Smith, 305 N.C. at 700, 292 S.E.2d at
270. The fact that the use of the stun device occurred after
Defendant took the merchandise from the store is of no moment on
these facts. See State v. Gaither, 161 N.C. App. 96, 100, 587
S.E.2d 505, 508 (2003) (citations omitted) (“A defendant's
threatened use of his gun is deemed concomitant with and
inseparable from his robbery attempt where the evidence shows
that (1) the gun was used to facilitate the defendant's escape,
and (2) the taking of property coupled with the escape
constitutes one continuous transaction. This standard applies
even if there is no evidence that defendant used force or
intimidation before the taking of property.”). Defendant’s
first argument is without merit.
II.
In Defendant’s second argument, he contends the trial court
improperly charged the jury on the crime of common law robbery.
We disagree.
Defendant contends the trial court improperly attempted to
correct a fatal deficiency in the indictment by instructing the
jury that, in order to convict on common law robbery, the jury
must find that Defendant “carried away property of [the store]”
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when the indictment fatally failed to identify to whom the
property belonged. Defendant’s argument is predicated on his
erroneous contention that establishing ownership of the property
taken was an essential element of common law robbery. Because
identifying the owner of the property was not an element of the
charge of common law robbery, Defendant’s second argument fails.
III.
In Defendant’s final argument, he contends the trial court
erred by instructing the jury on flight. We disagree.
As Defendant acknowledges, “jury instructions relating to
the issue of flight are proper as long as there is ‘some
evidence in the record reasonably supporting the theory that the
defendant fled after the commission of the crime charged.’”
State v. Allen, 346 N.C. 731, 741, 488 S.E.2d 188, 193 (1997)
(citations omitted). According to Haopshy, after Defendant
threatened him with the
stun device, causing Haopshy to retreat, Defendant “took off to
his car” and drove away. We hold this testimony constituted
“‘some evidence in the record reasonably supporting the theory
that the defendant fled after the commission of the crime
charged.’” Id. As our Supreme Court has noted, “‘[m]ere
evidence that defendant left the scene of the crime is not
enough to support an instruction on flight. There must also be
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some evidence that defendant took steps to avoid apprehension.’”
State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625-26 (2001)
(citation omitted). Defendant’s use of a stun device to prevent
Haopshy from detaining him satisfies this requirement.
Defendant’s final argument is without merit.
No error.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).