State v. Mason

• Decision Date: 07 August 2012
• Docket Number: No. COA11–1563.,COA11–1563.
• Citation: 730 S.E.2d 795
• Parties: STATE of North Carolina v. Tyrece Demont MASON.
• Court: North Carolina Court of Appeals

730 S.E.2d 795

STATE of North Carolina

v.Tyrece Demont MASON.

No. COA11–1563.

Court of Appeals of North Carolina.

Aug. 7, 2012.

Appeal by defendant from judgment entered 28 April 2011 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 25 April 2012.

Attorney General Roy Cooper by Assistant Attorney General Steven Armstrong for the State.

Brock, Payne & Meece, P.A., Durham, by C. Scott Holmes for defendant-appellant.

STEELMAN, Judge.

Defendant failed to preserve his argument as to a variance in the victim's name. Where the State presented evidence that a cell phone was taken from the victim, the trial court properly denied defendant's motion to dismiss. Where the State presented evidence that, while the other robber held a gun on the victim, defendant rifled through his pockets, the trial court properly denied defendant's motion to dismiss. Where the police officer testified as to the victim's statements at the scene of the robbery obtained through a telephonic translation service, and the testimony was received only for corroboration purposes, it did not violate defendant's constitutional right of confrontation. Where the trial court charged the jury on the theory of “acting in concert,” it was not error to decline to charge the jury on “mere presence.” While it was error for the trial court to send exhibits to the jury deliberation room over defendant's objections, the error was not prejudicial. The trial court did not coerce the jury into a unanimous verdict by playing back testimony and giving an Allen charge.

I. Factual and Procedural Background

On the evening of 10 December 2009, two young men approached Lin You Xing (Lin), owner of a Chinese restaurant in Durham, in the restaurant parking lot. One man had a gun and put his hand into Lin's pocket. He found a cell phone in the pocket and threw it away. Durham Police Officer McQueen (Officer McQueen) drove by during the robbery and saw Tyrece Mason (defendant) with his hands in Lin's pockets. The robber with the gun ran when he saw the police. A police canine located the discarded gun nearby. Lin and his brother held defendant until police arrested him.

The police interviewed Lin through a telephone service known as “Language Line.” Defendant testified at trial that he and another man had just been dropped off in front of the Chinese restaurant when the other man ran up to Lin, pointed a gun at Lin, and proceeded to rob Lin.

A jury found defendant guilty of robbery with a firearm. The trial court sentenced defendant to an active term of imprisonment of 42–60 months. This sentence was from the mitigated range.

Defendant appeals.

II. Denial of Motion to Dismiss

In his first argument, defendant contends that the trial court erred in denying his motion to dismiss the charges. This argument is made in three parts: (1) there was a variance between the name of the victim alleged in the indictment and at trial; (2) there was a variance between the evidence at trial and the jury instructions; and (3) sufficiency of the evidence. We disagree with all three bases of defendant's argument.

A. Standard of Review

Since defendant offered evidence following the denial of his motion to dismiss at the close of the State's evidence, we only review his motion to dismiss made at the close of all the evidence. State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985). “[I]n ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the crime and whether the defendant is the perpetrator of that crime.” State v. Ford, 194 N.C.App. 468, 472–73, 669 S.E.2d 832, 836 (2008) (quoting State v. Everette, 361 N.C. 646, 651, 652 S.E.2d 241, 244 (2007)). On appellate review, this Court “must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382–83 (1988) (citing State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 432 (1987)). “If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” Locklear, 322 N.C. at 358, 368 S.E.2d at 383 (citation omitted). Further, “[t]he defendant's evidence, unless favorable to the State, is not to be taken into consideration.” State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (quoting State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980)).

State v. Banks, ––– N.C.App. ––––, ––––, 706 S.E.2d 807, 812 (2011) (alterations in original).

B. Variance in Name of Victim

Defendant must preserve the right to appeal a fatal variance. See State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (“Regarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.”); State v. Roman, 203 N.C.App. 730, 731–32, 692 S.E.2d 431, 433 (2010); N.C.R.App. P. 10(a)(1) (2011).

Defendant moved to dismiss at the close of the State's evidence on the grounds that the State's evidence was insufficient to show a taking, that the gun was operational, and that defendant was the perpetrator of the offense. Defendant renewed this motion at the close of all evidence. Fatal variance was not a basis of his motions to dismiss.

Defendant failed to preserve this argument for appellate review, and it is dismissed. Even assuming arguendo that defendant preserved this issue for appeal, it would have no merit.

Defendant argues that there was a fatal variance between the name of the victim in the indictment and the evidence at trial. The indictment alleged that the victim's name was You Xing Lin, but the person who testified at trial was Lin You Xing. In State v. Cameron, the indictment stated that the name of the victim was “Mrs. Narest Phillips,” and at trial, the evidence showed the victim to be “Mrs. Ernest Phillips.” State v. Cameron, 73 N.C.App. 89, 92, 325 S.E.2d 635, 637 (1985). We held that a variance in names between the indictment and at trial was immaterial because the defendant “was not surprised or placed at any disadvantage in preparing his defense to the crimes charged in the indictment.” Id. We hold that, in the instant case, defendant was not “surprised or placed at any disadvantage” by this variance due to the fact the name was the same but in a different order.

C. Variance in Evidence

Defendant next argues that the trial court erred in denying his motion to dismiss the charge of robbery with a firearm because there was a variance between the theory of guilt contained in the trial court's instruction to the jury and the evidence at trial. Defendant contends that, because the indictment alleged an actual taking of the property and actual possession of a gun by defendant, and the evidence showed that there was not an actual taking of the property, the trial court should have dismissed the charge of robbery with a firearm and instructed the jury on attempted robbery with a firearm.

N.C. Gen.Stat. § 14–87(a) defines robbery with firearms or other dangerous weapons as:

Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.

N.C. Gen.Stat. § 14–87(a) (2011). The statute defines two crimes: armed robbery and attempted armed robbery. The jury was instructed solely on the theory of a completed robbery with a firearm together with an acting in concert instruction. Defendant argues that there was no actual “taking” of property and that, in the light most favorable to the State, all of the evidence shows only an attempted taking.

Taken in the light most favorable to the State, there was sufficient evidence presented of all of the elements of completed robbery, and the trial court's instruction to the jury was proper. The only element at issue is the taking of property. The State's evidence was that the robber with the gun reached into Lin's pocket, grabbed Lin's cell phone, and threw it away. Officer McQueen testified that he saw defendant's hands in Lin's pockets.

Defendant argues that there was no taking of the cell phone to show a completed robbery. The fact that the “taking” was for a relatively short period of time is insignificant. State v. Lawrence holds that even if something is forcibly removed from or surrendered by a victim for a short amount of time, such an act still constitutes a taking. State v. Lawrence, 262 N.C. 162, 166, 136 S.E.2d 595, 598 (1964). An analogous situation is found in the case of State v. Simmons, 167 N.C.App. 512, 606 S.E.2d 133 (2004). In Simmons, the defendant slapped a cellular phone out of the victim's hand and returned it to the victim shortly thereafter. Simmons, 167 N.C.App. at 514–15, 606 S.E.2d at 135. We held that

[t]he evidence that defendant returned the phone within a few days tends to contradict the circumstantial evidence of defendant's intent at the time of the taking. However, this evidence supporting a contradictory inference is not determinative on a motion to dismiss because defendant's intent at the time of the taking is an issue for the jury to resolve.

Si...