State v. Hull, COA14–251.

• Citation: 762 S.E.2d 915
• Case Date: September 16, 2014
• Court: Court of Appeal of North Carolina (US)

762 S.E.2d 915

STATE of North Carolina,
v.
Delunta Alundus HULL,
and
Sharrelle Lynn Davis.

No. COA14–251.

Court of Appeals of North Carolina.

Sept. 16, 2014.

[762 S.E.2d 916]

Appeal by defendants from judgments entered 6 August 2013 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 28 August 2014.

Roy Cooper, Attorney General, by Anne J. Brown and Richard H. Bradford, Special Deputy Attorneys General, for the State.

[762 S.E.2d 917]

Staples Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant Hull.

Amanda S. Zimmer, Southern Pines, for defendant-appellant Davis.

STEELMAN, Judge.

Where there was evidence of all of the elements of the charge of larceny from the person, the trial court did not err in denying defendants' motions to dismiss. The trial court did not commit plain error in its jury instructions on that charge. Where defendant was sentenced from the presumptive range, the trial court did not err by failing to make findings in mitigation or aggravation, or in not sentencing defendant from the mitigated range. Where the State presented evidence that Stuart's computer was in proximity to her and under her control, the trial court did not err in declining to submit the lesser charge of misdemeanor larceny to the jury.

I. Factual and Procedural Background

On 8 May 2012, Rashad Perry, Robert Hawkins, David Williams, Gabrielle Stuart, Braielyn Peoples and Emory Matthews were gathered at Hawkins' apartment in Greensboro for “study and fellowship” in preparation for exam week. Perry and Hawkins stepped outside, and were approached by a man armed with a handgun, who robbed them of their cellular telephones. Two more people, Delunta Alandis Hull (Hull) and Sharrelle Lynn Davis (Davis), then approached, and the five people—Perry, Hawkins, Hull, Davis, and the gunman—entered Hawkins' apartment.

Davis pulled Perry into the kitchen while Hull and the gunman went through the apartment. Two laptop computers and another cellular telephone were taken. One of the computers belonged to Stuart.

Prior to the time of the theft, Stuart had been working on her physics homework. While studying, Stuart, along with Peoples, Hawkins, Matthews, and Perry, was playing a computer game called “Dance Central” on the television. Each would take turns playing the game. At the time of the theft, it was Stuart's turn to play. Shortly after her turn started, Stuart was “knocked [ ] out of the game and [ ] realized something was out of order.” She saw that Hull and the gunman had possession of her laptop, which had been on a table three feet away from her, with her homework still visible on the screen.

Davis and Hull were each indicted on four counts of robbery with a dangerous weapon, and one count of first-degree burglary. At the close of the State's evidence, defendants moved to dismiss the charges. The trial court granted these motions with respect to the robbery with a dangerous weapon of Stuart, and denied them as to the other charges. With respect to the robbery of Stuart, the trial court submitted the lesser included offense of larceny from the person to the jury.

Defendants were found guilty of all charges. Hull was sentenced to consecutive active prison terms of 51–74 months for the robbery of Hawkins, 51–74 months for the robbery of Williams, and 5–15 months for the larceny from Stuart. He was also sentenced to concurrent active prison terms of 51–74 months for the robbery of Perry and 51–74 months for first-degree burglary. Davis was sentenced to consecutive active prison terms of 57–81 months for the robbery of Hawkins, 57–81 months for the robbery of Williams, and 6–17 months for the larceny from Stuart. She was also sentenced to concurrent active prison terms of 57–81 months for the robbery of Perry, and 57–81 months for first-degree burglary.

Defendants appeal.

II. Larceny from the Person

In defendants' first and second arguments, they contend that the trial court erred by denying their motions to dismiss the charge of larceny from the person as to Stuart, or alternatively that the trial court committed plain error when it instructed the jury on that offense. We disagree.

A. Standard of Review

“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).

[762 S.E.2d 918]

We review “unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “ fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “ ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’ ” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516–17, 723 S.E.2d 326, 333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).

B. Analysis

At the close of State's evidence, defendants moved to dismiss the charge of robbery as to Stuart. The trial court dismissed that charge, but submitted to the jury the lesser offense of larceny from the person. On appeal, defendants first contend that the trial court erred in denying their motions to dismiss the charge of larceny from the person.

The essential elements of larceny are: (1) taking the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with intent to permanently deprive the owner of the property. State v. Wilson, 154 N.C.App. 686, 690, 573 S.E.2d 193, 196 (2002). It is larceny from the person if the property is taken from the victim's person or “within the victim's protection and presence at the time of the taking.” Id. at 691, 573 S.E.2d at 196 (quoting State v. Barnes, 121 N.C.App. 503, 505, 466 S.E.2d 294, 296, aff'd,345 N.C. 146, 478 S.E.2d 188 (1996)).

In the instant case, the State presented evidence that Stuart was using her computer to do her physics homework and, while studying, was also playing a computer game called “Dance Central.” The game was operated by a Kinect video game system connected to Hawkins' television. A participant of the game was to duplicate dance moves on the television display. The participant's dance moves were captured by a video camera and the game then compared the displayed moves with the participant's moves in a side by side display.

When defendants and the gunman entered the...