State v. Jacobs ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, bu t 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. COA14-306
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Sampson County
No. 07 CRS 51724
DEANGELO JACOBS
On writ of certiorari to review judgment entered 8 October
2009 by Judge Russell J. Lanier, Jr., in Sampson County Superior
Court. Heard in the Court of Appeals 30 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Lora C. Cubbage, for the State.
Leslie C. Rawls for defendant-appellant.
BRYANT, Judge.
Where the State presented substantial evidence that
defendant acted in concert to commit common-law robbery,
defendant’s motion to dismiss was properly denied.
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On 24 September 2007, defendant Deangelo Jacobs was
indicted on one count each of robbery with a dangerous weapon
and possession of a firearm by a convicted felon. The matter
came on for trial during the 5 October 2009 criminal session of
Sampson County Superior Court, the Honorable Russell J. Lanier,
Jr., Judge presiding.
The State’s evidence tended to show the following. On 22
May 2007, Timothy Johnson was walking home after midnight when
he saw defendant and two friends standing on a street corner.
Johnson recognized the men from the neighborhood and knew one of
defendant’s associates by the name “Earl.”
When Earl called out to him, Johnson walked over to the
group. Defendant approached Johnson and struck him in the face.
Johnson returned the blow, knocking defendant to the ground, and
was set upon by defendant’s associates. Johnson fell down and
was hit and kicked by the three men. When Johnson stood up,
Earl “snatched” $7 from his pocket. Johnson began to run and
heard a popping sound. He turned around and saw defendant
firing at him with a handgun. Johnson “ran straight to the
house” and had his girlfriend drive him to the police station.
On 7 October 2009, a jury found defendant guilty of common-
law robbery and not guilty of possession of a firearm by a
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convicted felon. The trial court sentenced defendant to an
active prison term of sixteen to twenty months. Defendant
appeals.
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In his sole argument on appeal, defendant contends the
trial court erred by denying his motion to dismiss at the close
of the State’s evidence. We disagree.
“Upon review of a motion to dismiss, the court determines
whether there is substantial evidence, viewed in the light most
favorable to the State, of each essential element of the offense
charged and of the defendant being the perpetrator of the
offense.” State v. Lane, 163 N.C. App. 495, 499, 594 S.E.2d
107, 110 (2004) (citations omitted). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Brown, 310 N.C.
563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Smith, 300
N.C. 71, 78, 265 S.E.2d 164, 169 (1980)). “[T]he State is
entitled to every reasonable intendment and every reasonable
inference to be drawn therefrom; contradictions and
discrepancies are for the jury to resolve and do not warrant
dismissal[.]” State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841,
843 (2011) (citation and quotation omitted). If the evidence
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“is sufficient only to raise a suspicion or conjecture as to
either the commission of the offense, or the identity of the
defendant as the perpetrator of it, the motion for nonsuit
should be allowed. This is true even though the suspicion so
aroused by the evidence is strong.” In re Vinson, 298 N.C. 640,
656—57, 260 S.E.2d 591, 602 (1979) (citation omitted).
“Common law robbery is defined as ‘the felonious, non-
consensual taking of money or personal property from the person
or presence of another by means of violence or fear.’” State v.
Jones, 339 N.C. 114, 164, 451 S.E.2d 826, 854 (1994) (quoting
Smith, 305 N.C. at 700, 292 S.E.2d at 270). Under the doctrine
of concerted action, “[a] person may be found guilty of
committing a crime if he is at the scene acting together with
another person with a common plan to commit the crime, although
the other person does all the acts necessary to commit the
crime.” State v. Jefferies, 333 N.C. 501, 512, 428 S.E.2d 150,
156 (1993) (citing State v. Joyner, 297 N.C. 349, 255 S.E.2d 390(1979)). To sustain a conviction, the evidence must show that
the defendant (1) was present at the scene of the crime and (2)
“act[ed] together with another who does the acts necessary to
constitute the crime pursuant to a common plan or purpose.”
State v. Wallace, 104 N.C. App. 498, 504, 410 S.E.2d 226, 230
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(1991) (citing State v. Williams, 299 N.C. 652, 656—57, 263
S.E.2d 774, 777—78 (1980)). Moreover, the fact that a
“defendant did some act forming a part of the crime charged
would be strong evidence that he was acting together with
another who did other acts leading toward the crimes’
commission.” Joyner, 297 N.C. at 356—57, 255 S.E.2d at 395.
Defendant argues the trial court erred in denying his
motion to dismiss because the evidence was insufficient to show
that he acted in concert with Earl in robbing Johnson. While
conceding the evidence may have shown a common purpose to
assault Johnson, defendant contends that it raises only a
suspicion or conjecture that he shared a common purpose to
commit the robbery.
In State v. Ikard, the defendant sat in the back seat of a
vehicle with three men and the victim. State v. Ikard, 71 N.C.
App. 283, 284, 321 S.E.2d 535, 536 (1984). When the vehicle
stopped, the defendant and his three associates exited. Id.The defendant walked 20–25 feet away from the vehicle taking
with him the victim’s radio. Id. When the victim requested the
radio, two of the defendant’s associates returned to the car.
Id. One of them threatened the victim with a shotgun while the
other took $18 from the victim’s wallet. Id. Finding this
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evidence insufficient to support concerted action for common law
robbery, this Court noted that:
The State introduced no evidence tending to show
that defendant knew that his companions were
going to rob Mr. Anderson . . . . Nor was there
any evidence tending to show that defendant
encouraged the other men in the commission of the
crime, or that he by word or deed indicated to
them that he stood prepared to render assistance.
The most that can be said on this evidence is
that defendant was present when the crime was
committed, and this is insufficient to take the
case to the jury.
Id. at 285—86, 321 S.E.2d at 537.
Here, taken in the light most favorable to the State, there
is substantial evidence from which the jury could reasonably
infer that defendant and Earl joined in a common purpose to rob
Johnson. Defendant was not just “present” during the robbery;
he acted “in conjunction” with Earl. Joyner, 297 N.C. at 356,
255 S.E.2d at 395. Unlike the defendant in Ikard, defendant was
both “prepared” to and did “render assistance.” Ikard, 71 N.C.
App. at 285—86, 321 S.E.2d at 537. Defendant initiated the
physical encounter, struck Johnson in the face, and kicked
Johnson while Johnson was on the ground. Defendant also ended
the physical encounter by firing his handgun as Johnson was
running away.
In contrast to Ikard, the assault and robbery of Johnson
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were not “distinct and separate” acts. State v. Lambert, 149
N.C. App. 163, 167, 560 S.E.2d 221, 224 (2002). Defendant’s
assault of Johnson gave Earl an opportunity to reach into
Johnson’s pocket. As such, defendant was not separated from the
location of the robbery, see Ikard, 71 N.C. App. at 284—86, 321
S.E.2d at 536—37, nor was there significant time between
defendant’s and Earl’s actions. See Lambert, 149 N.C. App. at
167, 560 S.E.2d at 224 (noting “no separation by either time or
proximity between the [defendant’s] bottle-throwing” attacks and
his associates beating the victim to death with a tree limb).
The evidence thus supports a reasonable inference that defendant
was trying to disable Johnson so Earl could take money from him,
and afterwards encouraged Johnson to flee by shooting at him.
Accordingly, defendant’s argument is overruled.
No error.
Judges STROUD and HUNTER, Robert N., Jr., concur.
Report per Rule 30(e).