State v. Mack, 8626SC1328

CourtCourt of Appeal of North Carolina (US)
Citation87 N.C.App. 24,359 S.E.2d 485
Docket NumberNo. 8626SC1328,8626SC1328
PartiesSTATE of North Carolina v. Milas H. MACK, Jr.
Decision Date01 September 1987

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Marilyn R. Mudge, Raleigh, for state.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Daniel R. Pollitt, Raleigh, for defendant-appellant.

GREENE, Judge.

The issues for this Court's determination are: I) whether the State presented sufficient evidence that defendant "acted in concert" with Fitzsimmons during the armed robbery; II) whether the trial court should have submitted the allegedly lesser included offense of misdemeanor larceny to the jury; III) whether the trial court erroneously admitted evidence of a prior robbery of the ice cream store; IV) in sentencing defendant, whether the trial court: (A) erroneously considered charges pending against defendant or (B) erroneously found defendant's prior conviction under N.C.G.S. Sec. 15A-1340.4(a)(1)(o) based on statements by the prosecutor.


Upon defendant's motion to dismiss for insufficient evidence under N.C.G.S. Sec. 15A-1227 (1983), the court must determine as a matter of law whether the State has produced substantial evidence of each of the material elements of the offense charged and substantial evidence that defendant was the perpetrator of the crime. State v. LeDuc, 306 N.C. 62, 75, 291 S.E.2d 607, 615 (1982). There was no evidence defendant personally committed all the necessary elements of armed robbery under N.C.G.S. Sec. 14-87 (1986). See generally State v. Bates, 309 N.C. 528, 534, 308 S.E.2d 258, 262 (1983) (summarizing elements of nonconsensual taking of another person's property, in his presence or from his person, by endangering or threatening person's life with deadly weapon). Therefore, the State sought to prove the necessary elements of the offense by proving defendant acted "in concert" with Fitzsimmons:

It is not ... necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). Defendant argues the State presented insufficient evidence to show defendant acted with Fitzsimmons pursuant to a common plan or purpose to commit armed robbery.

Upon defendant's motion to dismiss, the court is required to consider the evidence in the light most favorable to the State, the State is entitled to every reasonable inference to be drawn from the evidence and all contradictions and discrepancies are for the jury to resolve. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The test of the sufficiency of the evidence to sustain a conviction is the same whether the evidence is direct, circumstantial, or both: whether the jury may infer defendant's guilt beyond a reasonable doubt from the circumstances. See State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965). The State's evidence established that the co-defendant Fitzsimmons endangered the ice cream clerk's life with a firearm and that property was taken from the cash drawer. While there is no direct evidence who took the money from the register, the jury could reasonably infer defendant took the money from the drawer and left the store: after Fitzsimmons apparently heard defendant leave the store, Fitzsimmons fled, after which the clerk discovered money missing from the cash drawer. Regardless of who took the money, there was likewise other evidence Fitzsimmons and defendant were acting together pursuant to a common plan or purpose: defendant showed no surprise or fear when Fitzsimmons entered the store brandishing his gun; after Fitzsimmons's entry, defendant stood motionless beside the gunman and only stared silently at the store clerk; and both defendants fled the store within seconds of each other. The clerk furthermore testified Fitzsimmons ran by the cash register without even bothering to check whether any money remained in the drawer.

We find this evidence sufficient to permit the reasonable inference that defendant and Fitzsimmons were acting together in pursuance of a common plan to take money from the store by threatening the clerk's life with a deadly weapon. Accordingly, the trial judge properly denied defendant's motion to dismiss.


Defendant next contends the trial judge improperly failed to submit a misdemeanor larceny verdict to the jury. The trial judge must instruct the jury of a lesser-included offense when there is evidence from which the jury could find defendant committed such lesser offense. State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976). There is some confusion whether misdemeanor larceny is a lesser-included offense of armed robbery. See State v. Hurst, 82 N.C.App. 1, 15-16, 346 S.E.2d 8, 16-17, disc. rev. allowed, 318 N.C. 698, 350 S.E.2d 861 (1986) (summarizing two lines of Supreme Court decisions). However, assuming arguendo misdemeanor larceny is a lesser-included offense of armed robbery, no reasonable view of this evidence would in any event permit the jury to find defendant himself took the money from the cash register without the consent and collaboration of Fitzsimmons. Since there was sufficient evidence of armed robbery and insufficient evidence of misdemeanor larceny, the trial court correctly refused to submit the issue of misdemeanor larceny to the jury. See Redfern, 291 N.C. at 321, 230 S.E.2d at 154.


Defendant next contends the trial court erroneously allowed the store clerk's following testimony:

Q. I believe the last question I had for you, sir, was at the time the gunman [Fitzsimmons] came in the store, did you recognize that man?

A. Yes.

Q. How did you recognize him?

.... A. I recognized him from coming in the store where they well, would have been on the 13th, when they robbed me on the 13th. [emphasis added]


Q. Is he the man that was the gunman on [the] November 13th and November 26th robberies?

A. Yes.

Defendant argues the witness's statement that "they robbed me" improperly led the jury to conclude defendant and Fitzsimmons had previously robbed the same ice cream parlor. Defendant argues the witness's statement was in any event irrelevant and prejudicial.

While our rules of evidence do not allow evidence of other crimes to prove defendant's criminal propensities, see N.C.G.S. Sec. 8C-1, Rule 404(a) (1983), Rule 404(b) allows evidence of other crimes for the purpose of proving a "plan." In any case, the clerk's testimony cannot be reasonably construed to indicate defendant actually committed any other crime with Fitzsimmons since the witness referred to no person other than Fitzsimmons. While this portion of the clerk's testimony might appear irrelevant since Fitzsimmons was no longer on trial, we cannot say defendant has been prejudiced by its admission in evidence. Exclusion of allegedly prejudicial evidence under N.C.G.S. Sec. 8C-1, Rule 403 is a matter within the sound discretion of the trial judge. State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986). Furthermore, defendant has failed to show that, had this allegedly prejudicial testimony been excluded, a different result would have been reached at trial. N.C.G.S. Sec. 15A-1443 (1986). Any error by the trial court was thus harmless.



Although neither the court's sentencing form nor the record reveals the court specifically found defendant's pending charges aggravated his sentence, the court did make the following references to defendant's pending charges:

THE COURT: Let the Record reflect that it appeared often in the pre-hearing conferences that the Court is aware that Mr. Mack is under arrest for three breaking and enterings and larceny in Mecklenburg County, but they have not come to trial. He's been arrested but not indicted. Further, he's a suspect in a double homicide. Proceed.


THE COURT: One second. He also has been--he is possibly implicated in another armed robbery at this same ice cream store, but based on representation of Counsel, apparently that was not a true charge, based on statements of the co-Defendants[,] that was very weak.


THE COURT: Mr. Mack, you're in a lot of trouble. In fact, you're in more trouble than anyone I've seen in my Court in months. Now, I'm going to sentence you then I'm going, I would think that the sentence I'm going to give you will be taken into account by the District Attorney's office and by the Judges in the other cases.

Defendant argues the court improperly considered these other charges in sentencing. A pending charge per se is clearly not a mandatory aggravating factor enumerated under N.C.G.S. Sec. 15A-1340.4(a)(1) (1986). Under Section 15A-1340.4(a), the trial court may however consider any unenumerated aggravating factor it finds by a preponderance of the evidence and which is "reasonably related to the purposes of sentencing" as set forth in Section 15A-1340.3:

The primary purposes of sentencing ... are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender's culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.

Since a pending charge raises no inference of defendant's guilt of the crime charged, see State v. Williams, 279 N.C. 663, 673, 185 S.E.2d 174, 180 (1971), the mere fact of pending charges is not itself an unenumerated aggravating factor "reasonably related to the purposes of sentencing" set forth by the Legislature. See State v. McLean, 83 N.C.App. 397, 402, ...

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