Heard in the Court of Appeals August 28, 2014.
Guilford County. Nos. 12 CRS 77582-85, 13 CRS 24290, 12 CRS 77220-24.
Roy Cooper, Attorney General, by Anne J. Brown and Richard H. Bradford, Special Deputy Attorneys General, for the State.
Staples Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant Hull.
Amanda S. Zimmer for defendant-appellant Davis.
STEELMAN, Judge. Judge GEER concurs. Judge HUNTER, Robert N., Jr. concurred prior to 6 September 2014.
Appeal by defendants from judgments entered 6 August
2013 by Judge James M. Webb in Guilford County Superior Court.
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 Alandus 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.
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 ...