State v. Lemon

• Court: Court of Appeals of North Carolina
• Decided: May 20, 2014
• Docket: 13-1144
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citat ion is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA13-1144 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Forsyth County No. 11 CRS 57557 DORSEY ALPHONZO LEMON, JR.

Appeal by Defendant from Judgment entered 10 August 2012 by

Judge Richard W. Stone in Forsyth County Superior Court. Heard

in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.

Anne Bleyman for Defendant.

STEPHENS, Judge.

Procedural History and Evidence

On 23 January 2012, Defendant Dorsey Alphonzo Lemon, Jr.,

was indicted on one count of robbery with a dangerous weapon.

Defendant was tried during the 6 August 2012 Criminal Session of

Forsyth County Superior Court. The evidence at trial tended to

show the following: -2- Theodore Hardy operated a “drink house,” where he sold

alcohol, cigarettes, candy, and chips out of his home. Hardy was

73 years old, retired, and disabled. On 29 July 2011, Tyrone

Carroll Woods visited Hardy and asked to borrow money. Hardy

showed Woods, a frequent visitor, about $200 to $300 in cash,

but refused to lend it to him. Woods sat with Hardy for ten to

fifteen minutes watching television and then left.

Shortly thereafter, a man, later identified as Defendant,

entered Hardy’s house and said, “This is a robbery,” while

pointing a pistol at Hardy. Defendant had short dreadlocks and

was wearing a green shirt. At one point Defendant shouted out

the door to Woods, who was then sitting in a burgundy Chevrolet

Malibu in front of the house, and asked whether he should use a

“wire” on Hardy. This was the same burgundy Chevrolet Malibu

that Melissa Yvette Porch had lent to Defendant about 2:30 p.m.

earlier that day. Defendant took Hardy’s wallet and demanded

more money. When Hardy told him that he did not have any more

money, Defendant made Hardy go into the bathroom. Hardy then

heard Defendant rummaging around in his bedroom before coming

back with a cut-up wire clothes hanger. Defendant put the wire

between Hardy’s fingers, threatening him in order to find more

money. When Hardy refused, the man left the house. -3- At 3:49 p.m., Winston-Salem Police Department Corporals

Eric Johnson and R.T. Phillips received a call about an armed

robbery at Hardy’s house. On his way to the scene, Cpl. Johnson

passed a burgundy Chevrolet Malibu traveling in the opposite

direction. The car turned into the entrance of Packaging Lines,

Incorporated, a plant where worker Chris Allen Peele saw the car

stop quickly at the loading area. It was approximately 4:00 p.m.

when he saw the passenger, a black man with dreadlocks, wearing

a green shirt, get out of the car, jump onto the dock, and run

down the back side of the plant. Peele saw the man make a

throwing motion as he ran past some pallets in the loading area.

When Cpl. Johnson pulled up to the car, there was no

passenger inside. Woods, the man who had tried to borrow money

from Hardy earlier, was sitting in the driver’s seat next to a

deposit bag that had a wallet with Hardy’s identification in it

and several cards Hardy later identified as his. A toy water

pistol was also in the car.

At the same time, Porch received a call from Defendant, who

told her she needed to pick up her car. Defendant also requested

that Porch ask her friend to drive him to Porch’s mother’s

house. When Porch arrived at the plant, she found her car

surrounded by police. -4- In response to the robbery dispatch call, Cpl. Phillips

began canvassing the neighborhood and observed Defendant, with

short dreadlocks, wearing a green shirt, standing on the porch

of a house later identified as belonging to Porch’s mother. A

car was leaving the driveway when Defendant went into the house

and came out a few minutes later, sweating profusely. Cpl.

Phillips searched and arrested Defendant.

Bowles, a forklift operator at Packaging Lines,

Incorporated, found a gun on the floor between the pallets on

the loading dock four days after the robbery occurred. Other

employees had access to the area, but Bowles was the only person

who moved pallets. Bowles took the gun to the plant manager, who

then gave it to the Winston-Salem Police Department. The gun was

a Lorcin 9 mm pistol with two rounds in it.

At the close of all the evidence, Defendant moved to

dismiss the charge of robbery with a dangerous weapon, arguing

that there was not substantial evidence of each essential

element of the charge. The court denied that motion. The jury

found Defendant guilty of robbery with a dangerous weapon. The

jury found the existence of four aggravating factors, and

Defendant was sentenced to 96 to 125 months in prison. Defendant

appeals. -5- Discussion

Defendant argues that the trial court erred (1) in denying

his motion to dismiss the charge of robbery with a dangerous

weapon, (2) by instructing the jury on the doctrine of recent

possession, and (3) in sentencing him based on four aggravating

factors. We find no error.

I. Motion to Dismiss

Defendant first argues that there was insufficient

evidence that he committed robbery with a dangerous weapon and,

therefore, that his motion to dismiss should have been granted.

We disagree.

“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).

Upon [the] defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator of such offense. If so, the motion is properly denied.

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)

(citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d

150 (2000). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a -6- conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164,

169 (1980). The trial court must consider all evidence 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, 451 S.E.2d 211,

223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818

(1995).

In order to establish that Defendant committed robbery with

a dangerous weapon, in violation of N.C. Gen. Stat. § 14-87(a),

the State must prove the following essential elements: “(1) the

unlawful taking or an attempt to take personal property from the

person or in the presence of another (2) by use or threatened

use of a firearm or other dangerous weapon (3) whereby the life

of a person is endangered or threatened.” State v. Small, 328

N.C. 175, 181, 400 S.E.2d 413, 416 (1991) (citations omitted).

“[W]here the instrument used [by the defendant] appears to be,

but may not in fact be, a firearm or other dangerous weapon

capable of endangering or threatening the life of another,” our

Supreme Court has laid out the following rules to be applied

when determining whether the evidence of armed robbery is

sufficient to be submitted to the jury:

(1) When a robbery is committed with what appeared to the victim to be a firearm or -7- other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim’s life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.

State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897

(1986).

Defendant argues that the trial court erred in denying his

motion to dismiss because there was insufficient evidence that

he used or threatened to use a firearm or other dangerous

weapon. Noting that the Lorcin 9 mm pistol was found at the

packaging plant four days after the robbery, he argues that

others had access to the area where the pistol was discovered

and that Peele never saw Defendant throw a pistol, but instead

only saw him make a throwing motion. Defendant also argues that

there was evidence to suggest that the weapon used in the -8- robbery was actually a toy gun and not a firearm or other

dangerous weapon. We are not persuaded.

Whether an instrument is a firearm or other dangerous

weapon is judged by the victim of the robbery from the

appearance of the instrument and the manner in which it is used.

State v. Thompson, 297 N.C. 285, 288, 254 S.E.2d 526, 528

(1979). Here, the evidence shows that Defendant robbed Hardy in

his home and brandished a handgun, which Hardy described as

“blue steel” or a pistol dark in color. Hardy never qualified

his description of the gun as potentially being fake; rather, he

consistently identified it as a dark handgun. Additionally,

Hardy testified that he was afraid because Defendant had the

“weapon” during the robbery. Shortly thereafter, a witness saw

Defendant run across a loading dock and make a throwing gesture

toward the area where an employee later found a loaded gun. The

fact that a real pistol was found close to where Defendant made

the throwing motion supports Hardy’s consistent testimony that

Defendant used a real firearm at the time of the robbery. This

constitutes substantial evidence that Defendant used or

threatened to use a firearm or other dangerous weapon during the

robbery. Accordingly, Defendant’s argument that the evidence of

a dangerous weapon was insufficient is overruled. -9- II. Doctrine of Recent Possession

Second, Defendant argues that the trial court erred in

instructing the jury on the doctrine of recent possession

because the State did not prove that the stolen items were in

Defendant’s “custody and control to the exclusion of others, or

that [Defendant] possessed the property recently after the

theft.” Again, we are unpersuaded.

This Court reviews a trial court’s decision regarding jury

instructions de novo. State v. Osorio, 196 N.C. App. 458, 466,

675 S.E.2d 144, 149 (2009). A jury instruction is proper if it

is based on “some reasonable view of the evidence.” State v.

Garner, 330 N.C. 273, 295, 410 S.E.2d 861, 874 (1991) (citation

omitted).

Under the doctrine of recent possession, possession of

recently stolen property creates a presumption that the

possessor stole the property. State v. Maines, 301 N.C. 669,

673, 273 S.E.2d 289, 293 (1981). “Although this doctrine is

often applied in the context of larceny, it also applies to

armed robbery.” State v. Lee, 213 N.C. App. 392, 395, 713 S.E.2d

174, 177 (2011) (citation omitted). In order to raise the

presumption that the possessor is guilty under the doctrine of

recent possession, the State must prove that “(1) the property -10- described in the indictment was stolen; (2) the stolen goods

were found in [the] defendant’s custody and subject to his

control and disposition to the exclusion of others . . . ; and

(3) the possession was recently after the larceny [or robbery.]”

Maines, 301 N.C. at 674, 273 S.E.2d at 293 (citations omitted).

Defendant argues that the State did not meet its burden to

prove the second and third prongs of the doctrine of recent

possession, exclusive and recent possession, because he was

“never found in possession of the bag or wallet.” Defendant’s

argument is without merit.

“Exclusive possession does not necessarily mean sole

possession. Exclusive possession means possession to the

exclusion of all persons not party to the crime.” State v.

Foster, 149 N.C. App. 206, 209, 560 S.E.2d 848, 851 (citation

and internal quotation marks omitted), cert. denied, 355 N.C.

496, 564 S.E.2d 48 (2002). “There is no specific period . . .

beyond which possession can no longer be considered ‘recent.’

Rather, the term is a relative one and will depend on the

circumstances of each case.” State v. Wilson, 313 N.C. 516, 536,

330 S.E.2d 450, 464 (1985) (holding that the defendant’s

possession of items two to four weeks after an armed robbery

committed with a co-conspirator was sufficiently close in time -11- to be considered “recent”); see also State v. Gonzalez, 311 N.C.

80, 88, 316 S.E.2d 229, 233 (1984) (holding that the defendant’s

possession of stolen property within several hours was

“recent”).

The State’s evidence shows that Cpl. Johnson followed

Defendant’s driver and accomplice, Woods, into Packaging Lines,

Incorporated, and found him in the car that Defendant had

borrowed from Porch only an hour and a half before the robbery

took place. A witness saw a man matching Defendant’s description

jump from the passenger seat of the car, run down the back side

of the plant, and make a throwing motion toward an area where a

gun was found four days later. Items stolen during the robbery

were next to Woods when police found them. The dispatch call to

police from Hardy’s house occurred at 3:47 p.m. Shortly after

Cpl. Johnson received the call at 3:49 p.m., he intercepted the

car described in the robbery. Defendant called Porch shortly

after 4:00 p.m. and told her where to retrieve her car. Only a

short period of time passed before Cpl. Phillips then located

Defendant at Porch’s mother’s house and arrested him. The time

from robbery to apprehension was less than one hour.

Woods and Defendant were the only people who had access to

the stolen property in the brief period between when the robbery -12- took place and when the police followed the car at the plant and

found the stolen property. Because Woods and Defendant acted in

concert to commit the robbery, Defendant can be considered to

have had exclusive possession of the stolen goods whether or not

they were found in his actual possession. See Foster, 149 N.C.

App. at 209, 560 S.E.2d at 851. The fact that the stolen

property was recovered only minutes after it was stolen makes it

sufficiently recent to be considered recent possession.

Therefore, the State’s evidence was sufficient to justify the

trial court’s jury instruction on the doctrine of recent

possession. Defendant’s argument is overruled.

III. Sentencing

Lastly, Defendant argues that the trial court erred in

submitting the following three aggravating factors to the jury:

(1) that the victim was very old, (2) that the victim was

physically infirm, and (3) that the victim was handicapped.1

Defendant argues that Hardy’s age of 73 years was not sufficient

to establish the “very old” aggravating factor. Additionally,

Defendant argues that the trial court did not sufficiently

1 Defendant stipulated to the fourth aggravating factor, admitting that he had violated his parole “during the 10-year period prior to the commission of the offense for which [Defendant was] being sentenced.” -13- differentiate between the “physically infirm” and “handicapped”

factors and therefore committed error. We disagree.

“When a defendant assigns error to the sentence imposed by

the trial court, our standard of review is ‘whether [the]

sentence is supported by evidence introduced at the trial and

sentencing hearing.’” State v. Deese, 127 N.C. App. 536, 540,

491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-

1444(a1)). Section 15A-1340.16 states:

(a) . . . The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court. . . .

. . .

(b) . . . If the jury, or with respect to an aggravating factor under [section] 15A- 1340.16(d)(12a) or (18a), the court, finds that aggravating factors exist or the court finds that mitigating factors exist, the court may depart from the presumptive range of sentences specified in [section] 15A- 1340.17(c)(2). If aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors that are present, it may impose a sentence that is permitted by the aggravated range described in 15A-1340.17(c)(4). If the court finds that mitigating factors are present and are sufficient to outweigh any aggravating factors that are present, it may impose a sentence that is permitted by the -14- mitigated range described in [section] 15A- 1340.17(c)(3).

N.C. Gen. Stat. § 15A-1340.16 (2013).

Defendant cites State v. Hines, 314 N.C. 522, 525, 335

S.E.2d 6, 8 (1985), for the proposition that “[a]ge should not

be considered as an aggravating factor in sentencing unless it

makes the defendant more blameworthy than he . . . already is as

a result of committing a violent crime against another person.”

Id. This is true. However, the Hines opinion also states that

“[i]n cases . . . involving victims near the beginning or end of

the age spectrum, the prosecution may establish vulnerability

merely by relating the victim’s age and the crime committed.”

Id. at 526, 335 S.E.2d at 8 (finding the 62-year-old victim was

not “very old”). In such a circumstance, it is not necessary for

the State to show exactly how the defendant is more blameworthy.

See id. In Hines, however, the victim was a 62-year-old man in

good health who worked as a brick mason until the five years

preceding his death. Id. The victim’s retirement was due to a

work-related injury and not because of his age. Id. Accordingly,

the Court found that he was not “very old.” Id.

Since Hines, our Supreme Court has stated that “[t]he

vulnerability accompanying advanced age is not caused by

physical disability alone, but encompasses the slowing of -15- reflexes and lessening acuity of senses which render older

citizens relatively defenseless against predators looking for

unprotected targets.” State v. Davis, 325 N.C. 607, 633, 386

S.E.2d 418, 432 (1989), cert. denied, 496 U.S. 905, 110 L. Ed.

2d 268 (1990). In that case, a 70-year-old, physically infirm

woman was murdered by the defendant who, through frequent visits

to her nursing home, had learned that a stroke had left the

woman with atrophied muscles and a limp, making her more

vulnerable to attack. Id. at 613–15, 386 S.E.2d at 420–21. There

the Court found that age, “discrete from that of the victim’s

physical infirmity, support[ed] the aggravation of the robbery

by virtue of the victim’s age.” Id. at 633, 386 S.E.2d at 432.

Like the defendant in Davis, Woods had several

opportunities to spend time with Hardy and assess his

vulnerabilities. Unlike the victim in Hines, Hardy was not a

healthy man at the time of the robbery. Hardy testified that he

was disabled, walked with a cane, coughed, shook, and that

walking around his home took him a very long time. While Hardy’s

physical limitations might speak to the aggravating factors of

physical infirmity and being handicapped, they may also help

draw a distinction between victims when considering the

aggravating factor of advanced age. Accordingly, the trial court -16- did not err in submitting the aggravating factor of advanced age

to the jury.

Defendant also argues that there was not enough distinction

between the evidence that Hardy was both “physically infirm” and

“handicapped” for those factors to be admitted separately to the

jury. We need not resolve this question here.

Defendant stipulated to the fact that he had violated his

parole within the 10 years preceding the current offense. In

addition, we have already determined that the trial court

properly submitted the age factor to the jury. The only

mitigating factor the trial court found was that it appeared

Defendant had a good support system. Whether the trial court

erred in separately submitting the last two aggravating factors

to the jury or not, the existing aggravating factors were

sufficient for the trial court to determine, in its discretion,

that the “good support system” mitigating factor was outweighed.

See N.C. Gen. Stat. § 15A-1340.16; see also State v. McDonald,

163 N.C. App. 458, 463, 593 S.E.2d 793, 796 (holding that,

according to N.C. Gen. Stat. § 15A-1340.16, it was within the

discretion of the court to sentence a defendant in the maximum

statutory range based on weighing the aggravating and mitigating -17- factors), disc. review denied, 358 N.C. 548, 599 S.E.2d 910

(2004). Therefore, we find no error.

NO ERROR.

Judges BRYANT and DILLON concur.

Report per Rule 30(e).