State v. Legrand ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-586
Filed 05 July 2023
Randolph County, Nos. 18 CRS 055022, 18 CRS 055023, 18 CRS 055024,
19 CRS 206, 19 CRS 207
STATE OF NORTH CAROLINA
v.
WILLIE LEGRAND, JR. a/k/a WILLIE LEGRANDE, Defendant.
Appeal by Defendant from Judgment entered 02 September 2021 by Judge
James P. Hill, Jr. in Randolph County Superior Court. Heard in the Court of Appeals
21 March 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General John H.
Schaeffer, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for Defendant-Appellant (allowed as substitute counsel by
order filed 20 December 2022 and filed Defendant-Appellant’s Reply Brief on 7
February 2023; Record on Appeal and Defendant Brief filed by-Paul F. Herzog,
allowed to withdraw as attorney of record by order filed 21 December 2022).
RIGGS, Judge.
Defendant Willie Legrand, Jr., appeals from judgment following a jury verdict
convicting him of possession of firearm by a felon, attempted robbery with a
dangerous weapon, and attempted first-degree murder. Mr. Legrand raises three
issues on appeal. In his first two issues, Mr. Legrand argues the trial court erred in
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Opinion of the Court
denying his motion to dismiss the attempted armed robbery and attempted murder
charges. Additionally, he argues the trial court erred in calculating his prior record
level. After careful review, we hold the trial court did not err.
I. FACTUAL AND PROCEDURAL HISTORY
On 19 October 2018, Defendant Willie Legrand, Jr. approached Richard
Jurgensen, who was leaving a convenience store and returning to his parked car in
Asheboro, North Carolina. After Mr. Jurgensen got into his car, Mr. Legrand yanked
on Mr. Jurgensen’s locked driver’s side door handle. When the door did not open, Mr.
Legrand told Mr. Jurgensen to, “Open the door, open the door,” and he tapped on Mr.
Jurgensen’s window with a revolver while motioning for Mr. Jurgensen to exit. Mr.
Jurgensen believed his only option was to open the door when Mr. Legrand stated,
“What’s the matter with you? Do you want to get shot. [sic].”
Upon exiting the car, Mr. Jurgensen tried to grab the gun from Mr. Legrand
because he noticed the revolver was not cocked, and they began to struggle over the
revolver. Mr. Jurgenson shoved Mr. Legrand, causing him to fall to the ground.
When Mr. Legrand fell, his right arm hit the ground and the gun fired. Mr. Jurgensen
ran for the store while shouting, “Help, robbery, call 911.” Mr. Legrand got back on
his feet and raised the gun in Mr. Jurgensen’s direction. He fired a second gunshot
that struck the wall of the convenience store approximately six feet away from Mr.
Jurgensen. Mr. Legrand then fired a third shot which Mr. Jurgensen said was aimed
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above his head. Police arrived at the store to investigate, but Mr. Legrand left the
site before the police arrived.
The State issued two sets of indictments. On 5 November 2018, the State
charged Mr. Legrand with possession of firearm by a felon, attempted robbery with a
dangerous weapon, second-degree kidnapping, and attempted first-degree murder.
On 3 June 2019, the State alleged in its second set of indictments that Mr. Legrand
was a habitual felon and violent habitual felon.
A jury trial began 30 August 2021 in the Randolph County Superior Court.
The court denied Mr. Legrand’s motion to dismiss all charges but later granted his
renewed motion to dismiss the second-degree kidnapping charge. On 2 September
2021, the jury returned a guilty verdict on the remaining charges. Mr. Legrand
pleaded guilty to the habitual felon and violent habitual felon charges.
The court proceeded with Mr. Legrand’s sentencing on 2 September 2021. The
State introduced Mr. Legrand’s “criminal history record” in Exhibits 20 through 24.
Mr. Legrand’s criminal history included several federal felony convictions. After
reviewing the exhibits, the trial court found Mr. Legrand’s out-of-state convictions
were substantially similar to state offenses, noting:
THE COURT: The [c]ourt, based upon the information
presented, finds by preponderance of the evidence that any
non-North Carolina offenses included in the stipulation as
to prior conviction is substantially similar to North
Carolina offenses, and North Carolina classification
assigned to said respective offenses is accurate. [The
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c]ourt, therefore, concludes that defendant would be prior
record level V for purposes of felony sentencing.
The trial court checked a box on Mr. Legrand’s prior record level worksheet stating
similar language:
For each out-of-state conviction listed in Section V on the
reverse, the [c]ourt finds by a preponderance of the
evidence that the offense is substantially similar to a North
Carolina offense and that the North Carolina classification
assigned to this offense in Section V is correct.
At the conclusion of the sentencing portion of the trial, the court imposed two
sentences of life without the possibility of parole for the convictions of attempted
murder and attempted armed robbery. Additionally, the court sentenced Mr.
Legrand to 127 to 165 months imprisonment for the conviction of possession of
firearm by a felon. The court entered a written judgment consistent with the sentence
delivered from the bench at the conclusion of the trial. Mr. Legrand gave an oral
notice of appeal on the record.
II. ANALYSIS
On appeal, Mr. Legrand argues the trial court improperly denied his motion to
dismiss the attempted armed robbery and attempted murder charges for insufficient
evidence. Additionally, Mr. Legrand argues the court improperly calculated his prior
record level. After careful review, we hold the trial court did not err.
A. Motion to Dismiss the Attempted Armed Robbery
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Mr. Legrand argues the State’s evidence did not support the intent element of
attempted armed robbery. He reasons the State’s evidence did not show he made an
express demand for money or property; therefore, evidence of intent was insufficient.
We disagree.
1. Standard of Review
This Court reviews de novo whether a trial court erred in denying a motion to
dismiss for insufficient evidence on each element of a criminal offense. State v.
Crockett, 368 N.C. 717, 720, 782 S.E.2d 878, 881 (2016). “In ruling upon a motion to
dismiss, the trial court must examine the evidence in the light most favorable to the
State, giving the State the benefit of all reasonable inferences which may be drawn
from the evidence.” State v. Poole, 154 N.C. App. 419, 424, 572 S.E.2d 433, 437 (2002)
(quoting State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 30 (2000).
2. Denial of motion to dismiss attempted armed robbery was proper
Attempted robbery with a dangerous weapon requires “(1) the unlawful
attempted taking of personal property from another, (2) the possession, use or
threatened use of ‘firearms or other dangerous weapon, implement or means,’ and (3)
danger or threat to the life of the victim.” State v. Wilson, 203 N.C. App. 110, 114,
689 S.E.2d 917, 921 (2010) (quoting State v. Torbit, 77 N.C. App. 816, 817, 336 S.E.2d
122, 123 (1985)) (citation omitted). “The gravamen of the offense is the endangering
or threatening of human life by the use or threatened use of firearms or other
dangerous weapons in the perpetration of or even in the attempt to perpetrate the
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crime of robbery.” State v. Ballard, 280 N.C. 479, 485, 186 S.E.2d 372, 375 (1972).
When reviewing a trial court’s denial of a motion to dismiss for insufficient evidence,
this Court considers “whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included therein, and (2) of
defendant’s being the perpetrator of such offense.” State v. Lee, 218 N.C. App. 42, 56,
720 S.E.2d 884, 894 (2012).
Mr. Legrand argues that because there was no spoken demand for money or
property, the evidence was insufficient to support a charge of attempted robbery.
However, Mr. Legrand’s conduct along with Mr. Jurgensen’s testimony supports a
reasonable inference of attempted armed robbery. In State v. Poole, this Court
affirmed the lower court’s denial of a motion to dismiss when the State presented
evidence showing the defendant pointed a gun at the victim and said “give it up” when
the two were in a parking lot. 154 N.C. App. at 423-255, 572 S.E.2d at 436-38. The
Court held that this evidence was sufficient to support a reasonable inference of
intent for attempted robbery. Id. at 425, 572 S.E.2d at 437-38.
Similarly, here, the jury heard testimony that Mr. Legrand tapped on Mr.
Jurgensen’s window with a revolver and demanded Mr. Jurgensen open his car door.
Although Mr. Legrand argues his conduct could indicate his intent to commit crimes
other than robbery, that argument fails because on these facts, a jury could
reasonably infer an intent to commit attempted armed robbery. Specifically, based
on this record, a jury could make a reasonable inference that Mr. Legrand made an
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Opinion of the Court
overt act in furtherance of an attempted armed robbery and that he did so by way of
an implied demand coupled with his use of a gun.
Relying erroneously on Powell, Smith, and Davis, Mr. Legrand argues that
because the encounter did not happen in a retail setting, a jury cannot reasonably
infer intent for robbery from his words. State v. Smith, 300 N.C. 71, 265 S.E.2d 164(1980); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980); State v. Davis, 340 N.C.
1, 455 S.E.2d 627 (1995). However, Mr. Legrand misconstrues the central element of
these decisions: “the gravamen of the offense is the endangering or threatening of
human life by the use or threatened use of firearms or other dangerous weapons in
the perpetration of or even in the attempt to perpetrate the crime of robbery”—not
the location of that overt act. Ballard, 280 N.C. 479, 485, 186 S.E.2d 372, 375. Cf.
State v. Jacobs, 31 N.C. App. 582, 584, 230 S.E.2d 550, 551-52 (1976) (holding
evidence of an overt act was insufficient where the defendant made no gesture
indicating an intent to touch, no threatened use of a gun, and no express or implied
demand). Here, Mr. Legrand displayed a gun, threatened its use, and made an
obvious implied demand. As in Poole, we find that, on these facts, a jury could make
a reasonable inference of attempted robbery.
Accordingly, we affirm the ruling of the trial court denying the motion to
dismiss.
B. Motion to Dismiss the Attempted Murder Charge
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In his second issue on appeal, Mr. Legrand argues the trial court erred in
denying the motion to dismiss the attempted murder charge for insufficient evidence
of intent. We disagree.
1. Standard of Review
This Court considers whether a trial court erred in denying a motion to dismiss
de novo. State v. Crockett, 368 N.C. at 720, 782 S.E.2d at 881.
2. Denial of motion to dismiss attempted murder charge was proper
To survive a motion to dismiss, the State must show sufficient evidence for
each element of the attempted murder offense. Lee, 218 N.C. App. at 56, 720 S.E.2d
at 894. “The essential elements of attempted first-degree murder are: (1) a specific
intent to kill another person unlawfully; (2) an overt act calculated to carry out that
intent, going beyond mere preparation; (3) the existence of malice, premeditation and
deliberation accompanying the act; and (4) a failure to complete the intended killing.”
State v. Foreman, 270 N.C. App. 784, 789, 842 S.E.2d 184, 188 (2020) (quoting State
v. Cozart, 131 N.C. App 199, 202-03, 505 S.E.2d 906, 909 (1998)).
Mr. Legrand argues that there was insufficient evidence for the jury to make
a reasonable inference of the requisite intent. This Court has held intent to commit
a felony may be inferred from the defendant’s conduct during the incident in question.
State v. Lucas, 234 N.C. App. 247, 254, 758 S.E.2d 672, 677 (2014) (citing State v.
Allah, 231 N.C. App. 88, 92, 750 S.E.2d 903, 907 (2013)) (citation omitted). Where
the State’s evidence showed the accused fired multiple gunshots, then premeditation,
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deliberation, and specific intent to kill may be inferred. State v. Chapman, 359 N.C.
328, 377, 611 S.E.2d 794, 829 (2005).
Mr. Legrand contends the intent for attempted murder could not be inferred
because the first gunshot resulted from an accidental discharge, the second gunshot
landed six feet away from Mr. Jurgensen, and the third gunshot went well over Mr.
Jurgensen’s head. Additionally, Mr. Legrand maintains his gunshots could be
construed as his attempt to scare or warn Mr. Jurgensen after they struggled over
Mr. Legrand’s gun, and Mr. Jurgensen shoved Mr. Legrand to the ground.
These arguments are unavailing. The State met the intent element when it
presented evidence showing Mr. Legrand fired multiple gunshots. State v. Allen, 233
N.C. App. 507, 512-13, 756 S.E.2d 852, 858 (2014); see also Chapman, 359 N.C. at
377, 611 S.E.2d at 829 (holding premeditation, deliberation, and intent for attempted
murder may be inferred where the defendant fired six to eight shots); State v. Cain,
79 N.C. App. 35, 47, 338 S.E.2d 898, 905 (1986) (“The requisite ‘intent to kill’ can be
reasonably inferred by the defendant’s use of a .357 magnum revolver, fired
numerous times.”); State v. Maddox, 159 N.C. App. 127, 132, 583 S.E.2d 601, 604
(2003) (holding evidence of intent sufficient where the defendant fired at the victim
when fleeing). Here, where the State’s evidence showed that Mr. Legrand fired three
gunshots, at least one of which was aimed at Mr. Jurgenson, the State presented
sufficient evidence from which a jury could infer the requisite intent.
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Mr. Legrand’s next argument, centering on his contention that none of the
bullets came close to hitting Mr. Jurgensen, is equally unavailing in light of this
Court’s ruling in State v. Lyons. 268 N.C. App. 603, 836 S.E.2d 917 (2019). In Lyons,
this Court concluded that the jury could draw a reasonable inference of intent from
the victim’s testimony that the gun was pointed at her as she ducked just seconds
before the gun was fired, regardless of whether the gun was actually pointed at her
when the defendant pulled the trigger. Id. at 613, 836 S.E.2d at 924. The Court
reasoned that “the standard of review on a motion to dismiss compels us to adopt the
reasonable inference most favorable to the State from the evidence,” which in that
case was an inference that defendant aimed and fired a gun at the deputy, even
though defendant argued he only fired a bullet to scare the deputy. Id. at 612-613,
836 S.E.2d at 924. Therefore, the Court affirmed the lower court’s denial of the
motion to dismiss.
This case tracks those facts from Lyons. Mr. Jurgensen saw Mr. Legrand aim
his gun in Mr. Jurgensen’s direction before firing the second gunshot. That alone
establishes that the motion to dismiss was properly denied, but the jury heard further
evidence from which it could have inferred that Mr. Legrand’s ineffectual aim did not
negate his intent, including the low lighting at the gas station and the fact that Mr.
Legrand wore a hat that hung low over his face. The State presented sufficient
evidence for a jury to reasonably infer the requisite intent. Therefore, we find no
error in the lower court’s ruling.
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C. Determination of Prior Record Level
On appeal, Mr. Legrand does not challenge the validity of his conviction for
possession of a firearm by a felon but takes issue with his sentencing on that
conviction. Therefore, we review only the sentencing as it pertains to his conviction
for possession of firearm by a felon.
The trial court sentenced Mr. Legrand to a term of 127 to 165 months of active
confinement for possession of a firearm by a felon based upon its findings that Mr.
Legrand was a prior record level V and a habitual felon. Mr. Legrand argues the
lower court erred in finding he was a prior record level V and argues he should be
sentenced at a prior record level III status. Mr. Legrand argues that he is properly
sentenced under prior record level III because the lower court could classify his out-
of-state felony convictions as Class I felonies only, which, in turn, results in fewer
points for the prior record level analysis. Mr. Legrand reasons the State failed to
follow N.C. Gen. Stat. § 15A–1340.14(e), requiring the State to prove an out-of-state
felony is substantially similar to a North Carolina offense before it attaches a more
serious felony classification to an out-of-state offense. N.C. Gen. Stat. § 15A–
1340.14(e) (2021).
1. Standard of Review
“The trial court’s determination of a defendant’s prior record level is a
conclusion of law, which this Court reviews de novo on appeal.” State v. Threadgill,
227 N.C. App. 175, 178, 741 S.E.2d 677, 679-80 (2013).
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2. Trial court properly considered prior offenses
The transcript of Mr. Legrand’s trial indicates the court found substantial
similarity between the crimes after reviewing State’s exhibits 20, 21, 22, 23, and 24.
THE COURT: The [c]ourt, based upon the information
presented, finds by preponderance of the evidence that any
non-North Carolina offenses included in the stipulation as
to prior conviction is substantially similar to North
Carolina offenses, and North Carolina classification
assigned to said respective offenses is accurate.
The court confirmed this statement when it checked a box confirming it made this
finding on Mr. Legrand’s prior record-level worksheet.
Mr. Legrand argues the lower court did not make a proper finding because
there is nothing in the transcript of the sentencing hearing where the trial court
recounted or detailed the evidence from the State proving substantial similarity
between Mr. Legrand’s out-of-state offenses and North Carolina offenses. Given the
Court’s indication of review in open court and its full execution of the sentencing
worksheet finding substantial similarity, this Court presumes the trial court reached
this finding properly. State v. Harris, 27 N.C. App. 385, 386-87, 219 S.E.2d 306, 307
(1975) (quoting State v. Stafford, 274 N.C. 519, 528, 164 S.E.2d 371, 377 (1968))
(“Unless the contrary is made to appear, it will be presumed that judicial acts and
duties have been duly and regularly performed.”) Mr. Legrand has submitted no
evidence to the contrary, and thus has not carried his burden of overcoming the
presumption of regularity. See State v. Johnson, 265 N.C. App. 85, 87, 827 S.E.2d
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139, 141 (2019) (“If the record discloses that the court considered irrelevant and
improper matter in determining the severity of the sentence, the presumption of
regularity is overcome, and the sentence is in violation of defendant’s rights.”).
Therefore, we find no error.
III. CONCLUSION
After careful review of the issues, we hold that the State presented sufficient
evidence of each element of the crimes such that a jury could make a reasonable
inference of intent. Therefore, the trial court did not err by denying the motions to
dismiss. Additionally, we hold that Mr. Legrand did not show that the trial court
erred in finding his prior federal crimes were substantially similar to North Carolina
crimes for purposes of sentencing.
NO ERROR.
Judges MURPHY and CARPENTER concur.
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