An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
