State v. Hope

335 S.E.2d 218, 77 N.C. App. 338, 1985 N.C. App. LEXIS 4086
CourtCourt of Appeals of North Carolina
DecidedOctober 15, 1985
Docket8416SC1196
StatusPublished
Cited by2 cases

This text of 335 S.E.2d 218 (State v. Hope) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hope, 335 S.E.2d 218, 77 N.C. App. 338, 1985 N.C. App. LEXIS 4086 (N.C. Ct. App. 1985).

Opinions

BECTON, Judge.

From a conviction of robbery with a firearm, defendant, W. D. Hope, appeals.

On 31 January 1984, Williamson and Barringer were working at Ned’s Outlet and Texaco when defendant entered the store wearing a long blue coat. Defendant went to the back of the store, and he returned wearing a tan coat belonging to Ned’s Outlet. He left his coat as an “exchange.” Defendant did not attempt to pay for the coat, and he walked toward the store’s exit.

Williamson stopped defendant and told him he was wearing a coat belonging to the store. Defendant denied this, and Williamson brought defendant to the back of the store where they found the blue coat defendant had left. Williamson then brought defendant to Barringer in the front of the store, and Williamson went to the cash register. Defendant told Barringer he wanted to trade coats, but Barringer said they didn’t trade coats. Defendant then headed for the exit once again, and Barringer asked him to stop. At this point, Williamson noticed a gun in defendant’s pants and warned Barringer.

Barringer testified at trial that he told Williamson to call the police, and that defendant then threatened to kill Barringer if he did not keep quiet. Williamson’s testimony indicated that defendant made the threat before Barringer told Williamson to call the police.

Of four possible verdicts —guilty of robbery with a firearm, guilty of common law robbery, guilty of misdemeanor larceny, and not guilty — the jury returned a verdict of guilty of robbery with a firearm.

Defendant raises two contentions on appeal: (1) the evidence was insufficient to go to the jury on the charge of robbery with a firearm because the threat of force.was subsequent to the taking, and (2) appointed defense attorney failed to provide effective [340]*340assistance of counsel at the sentencing hearing. We agree with defendant on his first argument and reverse the conviction. Therefore, we need not address the second argument.

Defendant asserts that the charge of robbery with a firearm should have been dismissed because the evidence was insufficient to prove the element of taking by force or a threat of force. On a motion to dismiss, the trial court must determine whether there is substantial evidence of each element of the offense and that the defendant was the perpetrator. State v. Powell, 299 N.C. 95, 98, 261 S.E. 2d 114, 117 (1980). Defendant’s motion to dismiss the armed robbery charge should have been granted unless there was substantial evidence of each element of armed robbery, which is “the taking of the personal property of another in his presence or from his person without his consent by endangering or threatening his life with a firearm or other deadly weapon with the taker knowing that he is not entitled to the property and the taker intending to permanently deprive the owner of the property.” Id. at 102, 261 S.E. 2d at 119 (citation omitted); see N.C. Gen. Stat. Sec. 14-87(a) (1981).

The evidence shows that, while still in the back of the store, defendant removed his own blue coat and put on a tan coat belonging to Ned’s Outlet. Defendant then walked toward the exit, leaving his old blue coat in the back of the store, without attempting to pay for the tan coat. The State presented the testimony of Mr. Williamson as follows:

Q. After you saw that the defendant was leaving — with the defendant leaving with the coat on, what, if anything, did you say to him or do?
A. As he was walking toward the door, I said, “Excuse me.” He stopped. I said, “That’s not your coat,” and then he started to arguing with me.
Q. Did you — do you recall the words of the argument?
A. Yes.
Q. Okay. What did the defendant say to you?
A. Okay. As I stopped him, I said, “That’s not your coat.” He said, “Yes, it is.” I said, “That’s not the coat you came in here [341]*341with.” He said, “Yes, I did.” And I took him to the back of the store where he had laid his coat.

Mr. Williamson testified that he then took defendant to Donald Barringer, who spoke briefly with defendant. Mr. Williamson’s testimony continued:

Q. Okay. And what happened at that time?
A. Well, as I was watching him, he started back out toward the front, and that’s when Donald started yelling at him, telling him that was his coat.
Q. Did the defendant still have on the coat at that time?
A. Yes, sir.
Q. Now, you stated that Donald Barringer told him what?
A. That wasn’t his coat, that it belonged to the store.
Q. What happened, then?
A. Okay. As he was telling — yelling at him, he just kept walking, just like he didn’t hear it.
Q. Go on.
A. And then after he got on a little closer to me, that’s when Donald stopped him and when he did, that’s when I pointed out the gun.
* * *
Q. Now, at any time, did you hear the defendant say anything after you informed Donald Barringer that he had the gun?
A. Yes. He told Donald that he better be quiet or he kill him.
Q. Where were you standing at this time?
A. Behind the counter.
Q. What did you do after the defendant told Donald Bar-ringer to be quiet, that if he didn’t be quiet, he would kill him?
A. Donald told me to call the police, and I was holding the phone when he said that, but I was scared to dial.
[342]*342* * *
Q. How long did the defendant remain there after he told you that he would kill Donald Barrington [sic]?
A. After he said that, he started out the door.
Q. What did you do at that point?
A. I called the police.

Defendant had taken, and indicated his intention to keep, the tan coat before making any threats. The issue remains whether the technical “taking” was part of a “continuous transaction,” as the State contends, or a discrete event ending before the threats were made.

The State advances several theories as to when the armed robbery transaction, and thus the taking, was completed: “when the defendant left the premises”; when the victims were induced to “relinquish their control of the property”; when the defendant left “the presence of one or both victim(s)”; and when the defendant took “possession” of the tan coat, rather than mere “custody.” We are not convinced.

It is now well established that larceny does not require asportation beyond the confines of the building and may be completed before the perpetrator leaves the premises of the victim. State v. Reid, 66 N.C. App. 698, 311 S.E. 2d 675 (1984); State v. Walker, 6 N.C. App. 740, 171 S.E. 2d 91 (1969). In the case sub judice,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Holley
604 A.2d 772 (Supreme Court of Rhode Island, 1992)
State v. Hope
335 S.E.2d 218 (Court of Appeals of North Carolina, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
335 S.E.2d 218, 77 N.C. App. 338, 1985 N.C. App. LEXIS 4086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hope-ncctapp-1985.