Holmes_ Robert Lee

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No. COA06-51                                               DISTRICT 19-B

                    NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA          )
                                 )         From Moore County
    v.                           )         02-CrS-53283
                                 )         03-CrS-785
ROBERT LEE HOLMES                )

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                      DEFENDANT-APPELLANT'S BRIEF

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         STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

    As an appeal from a final judgment of a superior court, this

appeal lies of right to the Court of Appeals according to the

provisions of N.C.G.S. § 7A-27(b).

                         STATEMENT OF THE CASE
    In January and February of 2003, a Moore County Grand Jury

returned true bills of indictment charging the defendant, Robert

Lee Holmes, with the crime of common law robbery and with being

an habitual felon.    R 3-4.   The Hon. James M. Webb presided over

Mr Holmes‟s trial during the 8 August 2005 criminal session of

the superior court of Moore County.         The petit jury found Mr

Holmes guilty of larceny from the person, and Mr Holmes entered a

guilty plea to being an habitual felon.         R 22-25.   The trial
court entered judgment on the verdict and plea and committed Mr
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Holmes to the custody of the North Carolina Department of

Corrections for a minimum of ninety (90) months to a maximum of

one hundred seventeen (117) months.        R 26-29.

    Mr Holmes gave notice of appeal in open court on or about 15

August 2005.   R 30.   The clerk notified the court reporter of the

trial court‟s order for the production of the transcript on 15

August 2005, and it was delivered to the parties on 19 October

2005.

    Mr Holmes served a proposed record on appeal on the state on

23 November 2005.   R 35.    The record on appeal was settled on 27

December 2005.   R 36.    Mr Holmes filed the record on appeal by

mail on 10 January 2006.     R 37.   The Office of the Clerk of the

North Carolina Court of Appeals mailed the printed record on

appeal on 23 February 2006 and gave notice in writing that same

day, and by order dated 22 March 2006, this court gave Mr Holmes

until 26 April 2006 to file his brief.

                         STATEMENT OF THE FACTS
    On a summer afternoon in 2002, Rachel Robertson was working

one of the five cash registers at Vass‟s Piggly-Wiggly store.         T

39-40.   A man named Mr Hill came up to the counter to buy a

bottle of rubbing alcohol.     Mr Hill dropped the change he was

using to buy the bottle and asked Ms Robertson to help him pick

it up.   She left the register drawer open.       T 40.

    As she was stooped over helping the customer, Ms Robertson
heard a loud click from the register that she thought was one of

the bill clips closing.     She looked up and saw Robert Lee Holmes
                                   -4-


“standing pretty close to the register.”     She had not noticed he

was even in the store until she looked up, after the click.      T

40, 41.   She stood up, quickly closed the register drawer, and

asked Mr Holmes if he had taken any money.    Before Mr Holmes

could answer, Mr Hill told her that he had been watching Mr

Holmes and that Mr Holmes had not taken anything from the

register.   Ms Robertson believed Mr Hill.   T 41.

    Ms Robertson noticed that Mr Holmes had a Piggly-Wiggly

flier in his hand as he left the store.    She followed him outside

and asked if he had taken any cash, and he denied it.    She then

tried to get the flier from him.    She said: “I placed my hands on

the edge of the paper and tried to tug on it, but he wouldn‟t let

go of it. […]   So I gave up and just wrote down the license plate

number down on the car.”   T 42.   Mr Holmes got into Mr Hill‟s

car, and they left the store.   T 43.

    Ms Robertson reported her suspicions, and her boss called

the police.   T 44.   The police took a statement from Ms Robertson
and then took her to a show-up to identify Mr Holmes and Mr Hill.

After returning to the Piggly-Wiggly, Ms Robertson went home.

The store later determined that $700 was missing from the drawer.

T 46.

                              ARGUMENT

    Ms Robertson never saw Mr Holmes take any money from her

register.   She did not even notice that he was in the store until
she heard the click from her register.    Despite the lack of

evidence that the taking was from Ms Robertson‟s person or
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presence, the trial court let the robbery and felonious larceny

cases go to the jury.

     Despite the fact that the evidence of a taking “from the

person” was equivocal at best, the trial court did not submit

misdemeanor larceny, a lesser-included offense, to the jury.

Thus the trial court, rather than the jury, decided a contested

issue of fact.

     Mr Holmes is entitled to entry of judgment on misdemeanor

larceny or a new trial.

I.   THE TRIAL COURT ERRED IN DENYING MR HOLMES‟S MOTION TO
     DISMISS AT THE CLOSE OF THE EVIDENCE.

     ASSIGNMENT OF ERROR NO. 4

     (R 44)

     Standard of Review:   A motion to dismiss is properly denied

if “there is substantial evidence (1) of each essential element

of the offense charged and (2) that defendant is the perpetrator

of the offense.”   State v. Lynch, 327 N.C. 210, 215 (1990).
“What constitutes substantial evidence is a question of law for

the court.”   State v. Barnes, 345 N.C. 146, 148 (1996) (citing

State v. Vause, 328 N.C. 231, 236 (1991)).

     The grand jury returned a true bill of indictment against Mr

Holmes, charging him with the crime of common law robbery.     R 3.

Larceny from the person and misdemeanor larceny are lesser-

included offenses of robbery.    State v. Bell, 228 N.C. 659

(1948).
     The felonies of robbery and larceny from the person share an
                                 -6-


essential element; the taking must be from the person or presence

of the victim.   Misdemeanor larceny does not have this element.

Because there is no evidence that Mr Holmes took the cash from Ms

Robertson‟s person or presence, the trial court erred in denying

Mr Holmes‟s motion to dismiss based on the insufficiency of the

evidence.

    This court and our Supreme Court have decided similar cases.

An examination of these cases leads to the conclusion that there

was, as a matter of law, insufficient evidence to send the felony

charges to the jury for its consideration.

    In State v. Lee, 88 N.C. App. 478, 480 (1988), this court

vacated a larceny from the person conviction based upon the lack

of evidence that the taking was “from the person”.    The victim,

Ms Strickland, was a shopper in a market who had placed her purse

in a grocery cart.   Mr Lee‟s accomplice distracted Ms Strickland

by getting her to help him look for some peas.    As Ms Strickland

stepped away from the cart, Mr Lee took her purse and left the
store.   Ms Strickland noticed her purse‟s absence and notified

the store, and the police soon caught Mr Lee.     Id. at 479.

    Mr Lee argued that the larceny was from an unattended

shopping cart, not a person, and this court agreed.    The Lee

court noted that the value of the stolen purse and its contents

was $276 and that the evidence supported a conviction for the

lesser-included offense of misdemeanor larceny.    The Lee court
vacated the felony judgment and remanded the case for entry of

judgment and sentencing on misdemeanor larceny.     Id. at 479-480.
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       In Barnes, our Supreme Court affirmed this court‟s decision

to vacate a larceny from the person conviction and remand the

case for entry of judgment on misdemeanor larceny.        Barnes at

151.    The victim, Mr Morana, sold sunglasses at a kiosk in the

middle of a mall.    Mr Morana walked away from his kiosk to talk

with another shopkeeper but quickly returned when he was told

that someone had gone into his shop.        He found Mr Barnes

crouching behind his cash register.        Mr Morana questioned Mr

Barnes, who denied stealing anything.        When Mr Morana walked past

Mr Barnes to check on his money bag, Mr Barnes left the kiosk.

Id. at 147.

       Mr Morana realized the money bag, containing $50 in cash and

a check, was missing.       He again left the kiosk to follow Mr

Barnes.    Mr Morana caught up with Mr Barnes at an exit and asked

for the return of the money bag.       Mr Barnes denied having it, but

Mr Morana noticed a bulge under Mr Barnes‟s shirt, grabbed at it,

and saw the money bag.       Mr Barnes tried to hit Mr Morana before
leaving the mall.     Id.

       The Barnes court held that “for larceny to be „from the

person,‟ the property stolen must be in the immediate presence of

and under the protection or control of the victim at the time the

property is taken.”     Id. at 149 (emphasis in original) (citing

State v. Buckom, 328 N.C. 313, 317-318 (1991)).        The Barnes court

then had to decide whether the taking of the money bag had been
completed when Mr Barnes first put it under his shirt or whether

his struggle with Mr Morana at the exit was part of a “continuous
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transaction” of larceny.      Id.

    The Barnes court held that “the crime of larceny was

completed when defendant removed the bank bag from below the cash

register.”   Id. at 150.     The only question remaining was whether

this larceny was from Mr Morana‟s person or presence.       The Barnes

court looked to Lee and Buckom for guidance.

    In Buckom, the defendant took money out of a cash register

while the cashier was getting change for him from the drawer.

Buckom at 315.   The Barnes court stated, “Such action clearly

constituted an invasion of the victim‟s person or immediate

presence.”   Barnes at 150.       However, since the defendant in Lee

“secretly took the victim‟s purse”, he had not invaded her person

or immediate presence.      Id.   The Barnes court held that its case

was closer to the Lee case, and since Mr Barnes had “secretly”

removed the money bag, he had not invaded Mr Morana‟s person or

immediate presence.   Id.

    Because there was insufficient evidence that the money bag
was “in the immediate presence of and under the protection or

control of Morana at the time of the taking,” the trial court had

erred by denying the motion to dismiss.       The Barnes court also

held that, since the jury had necessarily found the elements of

misdemeanor larceny, the case had to be remanded for entry of

judgment on misdemeanor larceny.       Id. at 151.

    There is no reasonable manner in which to distinguish the
facts of the present case from those found in Lee and Barnes.         In

all three cases, there was a secret taking of property while the
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victim‟s attention was elsewhere.    As in Lee, an accomplice

distracted the victim.    As in Lee and Barnes, the victim did not

see the thief take the loot.     As in Barnes, the victim questioned

the thief and attempted to retrieve the loot.     As in Lee and

Barnes, the amount stolen was less than $1,000.    (Though the

indictment in the present case alleges the taking of $900, Ms

Robertson testified that it was actually $700.     R 3, T 46.)

       The present case also contains a fact that compels the

conclusion that the taking of the cash from the drawer was

“secret” according to Barnes.     Ms Robertson did not even look in

her drawer to see if any money was missing before slamming it

shut, questioning Mr Holmes, following him outside, and accosting

him.    She never saw the money in Mr Holmes‟s hands or on his

person.    T 41-42.   In contrast, the victims in Lee and Barnes

knew, at the moment they turned their attention to the location

of their property, that it had been stolen.    The taking in the

present case was so secret that Ms Robertson never had more than
a suspicion that anything was missing.

       According to Lee and Barnes, the cash in the register‟s

drawer was not in Ms Robertson‟s immediate presence, nor under

her protection or control, when Mr Holmes secretly took it.

Since, as a matter of law, there was insufficient evidence of the

“from the person” element of robbery and felony larceny, the

trial court erred in denying Mr Holmes‟s motion to dismiss.       This
court must vacate the judgment entered on the conviction and

remand the case to the superior court of Moore County for
                                  -10-


imposition of judgment and sentencing on misdemeanor larceny.

II.   THE TRIAL COURT PLAINLY ERRED BY REFUSING TO INSTRUCT THE
      JURY ON THE CRIME OF MISDEMEANOR LARCENY.

      ASSIGNMENT OF ERROR NO. 1

      (R 44)

      Standard of Review:   To show plain error, the defendant must

convince the appellate court that, absent the error, the jury

probably would have reached a different verdict.    State v. Odom,

307 N.C. 655, 661 (1983).

      As demonstrated in the argument above, there was not enough

evidence to satisfy the “from the person” element of felony

larceny.   But even if, in the light most favorable to the state,

there is a reasonable inference that the taking was from Ms

Robertson‟s person, the evidence was far from overwhelming.    The

evidence presented a jury question: was the taking “from the

person”?

      The trial court, in essence, stepped off the bench, entered
the jury box, and decided this factual issue against Mr Holmes.

The evidence compelled an instruction on the lesser-included

offense of misdemeanor larceny, and the jury‟s questions and

behavior during deliberation show us that it would have chosen

misdemeanor larceny if it had been given the choice.   Mr Holmes

is entitled to a new trial.

      The grand jury indicted Mr Holmes for common law robbery.    R

3.    Misdemeanor larceny is a lesser-included crime of robbery.
State v. White, 322 N.C. 506, 518 (1988).   It is well settled
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that the trial court must “submit lesser included offenses as

possible verdicts, even in the absence of a request by the

defendant, where sufficient evidence of the lesser offense is

presented at trial.”    State v. Lowe, 150 N.C. App. 682, 686

(2002).   Failure to do so is “reversible error that cannot be

cured by a verdict finding the defendant guilty of the greater

offense.”    State v. Lawrence, 352 N.C. 1, 19 (2000), cert.

denied, 531 U.S. 1083 (2001).

    This court, in State v. Boston, 165 N.C. App. 890, 893,

disc. rev. denied, 359 N.C. 70 (2004), awarded a new trial after

determining that the trial court should have charged the jury on

the lesser-included offense of misdemeanor larceny.      Mr Boston

and the victim, Mr Skinner, gave the jury different accounts of

the crime.    Mr Skinner told the jury that Mr Boston jumped on him

when his back was turned, beat him up, and took his wallet from

his pocket.    Mr Boston told the jury that he stole Mr Skinner‟s

wallet from a table when Mr Skinner‟s back was turned and that he
did not assault Mr Skinner.     The trial court did not give an

instruction on misdemeanor larceny.      Id. at 891-2.

    Mr Boston argued that the evidence of the “from the person”

element of robbery and felony larceny was in conflict and

supported an instruction on misdemeanor larceny.     The Boston

court first acknowledged that misdemeanor larceny is a lesser-

included offense of larceny from the person and that Mr Boston
was entitled to have his jury instructed on the misdemeanor if

the evidence supported it.    Id. at 892.
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      Then the Boston court examined the Lee and Barnes opinions

and applied them to the facts at hand.     The Boston court found it

significant that, as in Lee and Barnes, the victim did not see

the taking as it happened.     “What distinguishes Buckom from Lee

and Barnes is not only the distance involved, which is relevant

to immediate presence, but also the awareness of the victim of

the theft at the time of the taking, which is relevant to

protection and control.”     Id. at 893.   Since the “from the

person” evidence was in conflict, Mr Boston was entitled to an

instruction on the lesser-included offense of misdemeanor larceny

and a new trial.   Id.

      In the present case, as in Boston, the evidence was not

wholly positive as to the “from the person” element of felony

larceny.   Because the evidence supported an instruction on

misdemeanor larceny, the trial court erred in failing to submit

the offense to the jury.

      Mr Holmes neither requested a misdemeanor larceny
instruction nor objected to the charge after the trial court gave

it.   Thus, this court must decide whether the lack of the

instruction was plain error.

      This court has found plain error in cases where the trial

court did not submit a lesser-included offense for the jury‟s

consideration.   State v. Bell, 87 N.C. App. 826 (1987); Lowe,

above; State v. McCoy, COA04-1336 (18 October 2005), disc. rev.
denied, ___ N.C. ___ (2006).    This court has succinctly stated

why this error‟s remedy must be a new trial: “There is simply no
                                  -13-


way to ascertain what verdict the jury might have reached had

they been given an alternative….”       Bell at 835.

    In the present case, the jury had before it overwhelming

evidence that Mr Holmes, knowing he was not entitled to it, took

the money from the drawer and made away with it without Piggly-

Wiggly‟s consent with the intent to deprive Piggly-Wiggly of the

money forever.     However, there was not even sufficient evidence,

much less overwhelming, unequivocal and positive evidence, that

Mr Holmes took the money from Ms Robertson‟s person.     As in Bell,

Lowe and McCoy, we cannot determine whether the jury‟s verdict

would have been had they been given the proper choice.

    However, the jury‟s behavior and questions support Mr

Holmes‟s plain error argument.    The jury obviously had trouble

finding the “from the person” element.

    After just over thirty minutes of deliberation, the jury

notified the trial court that it was a “Hung Jury” and that the

vote was 11-1.   R 14, T 101-102.   The trial court gave the jury
an “Allen charge” and a fifteen-minute break.      T 103-104.

    Immediately after re-convening after the break, the jury

sent out a request to “see the State‟s evidence presented.”     R

15, T 109.   The trial court sent State‟s Exhibits 1 and 2 (Ms

Robertson‟s statement and photocopies of the cash seized from Mr

Holmes) into the jury room.    T 110.

    About thirty minutes later, the jury sent out another note
asking for the elements of robbery and larceny from the person.

R 16, T 110-111.    The trial court re-instructed the jury on the
                                    -14-


two crimes and then asked if any of the jurors had any questions.

One juror asked whether Mr Holmes had to “actually physically

take” the money to be guilty.   R 17, T 114.    The trial court

again instructed the jury on robbery and larceny from the person

and added acting in concert as a theory of Mr Holmes‟s guilt.        R

18-21, T 114-117.   Only three minutes later, the jury returned

its guilty verdict.    T 117-118.

    This last question from the jury, and its answer‟s effect,

are most telling.   Mr Hill, not Mr Holmes, was in Ms Robertson‟s

immediate presence while she helped him with the change and Mr

Holmes secretly took the money.      The jury, after hearing that Mr

Holmes could be guilty based on Mr Hill‟s actions, almost

immediately convicted Mr Holmes.      It appears that at least one

juror did not believe that Mr Holmes‟s taking was “from the

person” and that at least that one juror would have voted for

misdemeanor larceny if properly given the choice.

    The jury, not the trial court, has the job of determining
issues of fact.   The trial court ignored this fundamental

principle when it failed to give an instruction on misdemeanor

larceny.   Since it is likely that the jury would have reached a

different verdict if given the proper charge, the error was

plain.   Mr Holmes is entitled to a new trial.

                             CONCLUSION

    Mr Holmes respectfully asks this court to vacate the
judgment and remand the cases for entry of judgment on

misdemeanor larceny.   In the alternative, Mr Holmes asks this
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court to remand the cases for a new trial.

    Respectfully submitted on this the 26th day of April, 2006.



                                     ____________________________
                                     Russell J. Hollers III
                                     Attorney for Appellant
                                     P.O. Box 1131
                                     Carrboro, NC 27510
                                     (919) 967-5300
                                     russhollers@intrex.net




                     CERTIFICATE OF SERVICE

    This is to certify that on the date below, I served the

State of North Carolina with the foregoing Defendant-Appellant's

Brief by depositing a copy thereof in a postpaid wrapper in a

Post Office or official depository under the exclusive care and
custody of the United States Post Office Department, addressed to

Allison Corum, Assistant Attorney General, Environmental

Division, N.C. Department of Justice, 9001 Mail Service Center,

Raleigh, NC 27699-9001.

    This date:___________________.


                                     _____________________________
                                     Russell J. Hollers III
                                     Attorney for Appellant
                                     P.O. Box 1131
                                     Carrboro, NC 27510
                                     (919) 967-5300
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   russhollers@intrex.net

				
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