              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA19-1138

                                Filed: 7 July 2020

Davidson County, No. 18CRS052224, 18CRS052222, 18CRS002479

STATE OF NORTH CAROLINA

             v.

DEONTRAE YOUNG-KIRKPATRICK, Defendant.


      Appeal by Defendant from judgments entered 2 April 2019 by Judge Joseph N.

Crosswhite in Davidson County Superior Court. Heard in the Court of Appeals 10

June 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kelly A.
      Moore, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew J.
      DeSimone, for Defendant.


      BROOK, Judge.


      Deontrae Young-Kirkpatrick (“Defendant”) appeals from judgment entered

upon jury verdicts for common law robbery and habitual misdemeanor assault and

judgment entered upon plea of guilty for attaining the status of habitual felon. On

appeal, Defendant argues that the trial court erred in denying his motion to dismiss

the common law robbery charge. Defendant further argues that the trial court erred

in admitting Rule 404(b) evidence and that the admission of such evidence was
                            STATE V. YOUNG-KIRKPATRICK

                                   Opinion of the Court



prejudicial. Finally, Defendant argues that the trial court erred in entering a civil

judgment for attorney’s fees against him.

      For the following reasons, we hold that Defendant has failed to demonstrate

error in regard to the first two issues; however, we agree that the trial court erred in

ordering Defendant to pay attorney’s fees.

                        I. Factual and Procedural Background

      After spending the evening at her friend’s house on 22 April 2018, Paige

Lineberry pulled into her driveway in her new car. Though Defendant, her then-

boyfriend, had purchased the car for her two days prior, Ms. Lineberry testified that

her father had paid him back either that same day or the next with her tax return

money.

      Defendant was waiting for Ms. Lineberry in his car parked in her driveway.

Ms. Lineberry testified at trial that she got out of her car and into Defendant’s car,

and the two started talking. After about 30 minutes, they got into an argument when

Defendant called Ms. Lineberry “an ass kisser” and “said [her] parents control [her].”

Ms. Lineberry testified that she got back into her car, and Defendant moved his car

directly behind hers. She backed her car into Defendant’s car but did not cause any

damage to his car; however, Defendant “jumped out of his car[,]” approached Ms.

Lineberry’s driver’s side window, and began yelling at her.         She testified that

Defendant told her she was going to have to “fix his mama’s car.”



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       Defendant told Ms. Lineberry to get out of the car, but she refused. Ms.

Lineberry testified that Defendant proceeded to hit her windows with his fists, then

with a tire iron, and finally with a piece of slate that was sitting on the driveway.

While Defendant was trying to break into her car, Ms. Lineberry testified that she

honked her horn and called her brother, who was inside the house, to try and get his

attention. Jade Lineberry, Ms. Lineberry’s brother, testified that he answered the

phone and then called 911. Defendant eventually broke through one of the car’s

windows and grabbed Ms. Lineberry by the throat. Ms. Lineberry testified that she

felt like she was going to die while he was squeezing her throat.

      As Defendant was grabbing her throat, he opened her car door with his other

hand and pulled Ms. Lineberry out of the car. She was able to get away from

Defendant and ran to her front porch where he cornered her for about 10 minutes.

Mr. Lineberry testified that at this point he opened his front door and saw Defendant

blocking Ms. Lineberry’s path and yelling at her. He put his hand on Defendant’s

shoulder to “calm the situation[,]” and Ms. Lineberry ran into the house. Defendant

“tried to force his way” into the house “for a brief minute[,]” but then followed Mr.

Lineberry away from the porch and down to the driveway.

      Mr. Lineberry testified that Defendant repeatedly told him that Ms. Lineberry

“was the problem and he needed his money.” Defendant then went to Ms. Lineberry’s

car and took out her keys and car title, saying “something to the effect of, ‘This is



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mine,’ or ‘She don’t deserve this. This is mine.’” Officer Adam Gleave, who responded

to the scene about 20 minutes after Mr. Lineberry called the police, testified that he

found the keys and car title either on top of Defendant’s car or in his driver’s seat.

Officer Gleave also testified that Defendant told him he had taken the keys and the

title.

         Ms. Lineberry also testified that Defendant provided her with heroin during

the course of their relationship.

         After a trial running from 1 to 2 April 2019 before Judge Crosswhite, the jury

returned verdicts of guilty for habitual misdemeanor assault and common law

robbery. Defendant then pleaded guilty to attaining habitual felon status. The trial

court consolidated the convictions and sentenced Defendant to 110 to 144 months’

active imprisonment.      In an undated order, the trial court also entered a civil

judgment for attorney’s fees against Defendant in the amount of $5,640.50.

         Defendant gave oral notice of appeal following entry of the criminal judgment.

                                       II. Analysis

         On appeal, Defendant argues that the trial court erred in denying Defendant’s

motion to dismiss the robbery charge because there was insufficient evidence that

Defendant used violence or intimidation to take the property or that he took property

from Ms. Lineberry’s presence. Defendant further argues that the trial court erred

in admitting evidence that Defendant provided heroin to Ms. Lineberry and that the



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error was prejudicial. Finally, Defendant argues that the trial court erred by ordering

Defendant to pay attorney’s fees without notice and opportunity to be heard.

      We consider each argument in turn.

                   A. Motion to Dismiss for Insufficiency of the Evidence

      Defendant first argues that the trial court erred in denying his motion to

dismiss the charge of common law robbery because the State failed to prove that he

(1) used force or intimidation to take property and (2) took property from Ms.

Lineberry’s person or presence. For the following reasons, we hold that the trial court

did not err.

                                 i. Standard of Review

      We review the denial of a motion to dismiss de novo. State v. Robledo, 193 N.C.

App. 521, 525, 668 S.E.2d 91, 94 (2008). “Under a de novo review, th[is C]ourt

considers the matter anew and freely substitutes its own judgment for that of the

lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)

(internal marks and citation omitted).

                                       ii. Merits

               When a defendant moves for dismissal, the trial court is to
               determine whether there is substantial evidence (a) of each
               essential element of the offense charged, or of a lesser
               offense included therein, and (b) of defendant’s being the
               perpetrator of the offense. If so, the motion to dismiss is
               properly denied.




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State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. at 66, 296 S.E.2d at 652 (internal marks and citation

omitted). “In deciding a motion to dismiss, the evidence should be viewed in the light

most favorable to the State[,]” State v. Mucci, 163 N.C. App. 615, 618, 594 S.E.2d 411,

414 (2004), “giving the State the benefit of every reasonable inference to be drawn

therefrom[,]” State v. Bates, 70 N.C. App. 477, 479, 319 S.E.2d 683, 684 (1984).

      Common law robbery under N.C. Gen. Stat. § 14-87.1 (2019) is 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. Porter, 198 N.C. App. 183, 186, 679

S.E.2d 167, 169 (2009) (citation omitted).       In assessing whether the State has

established the requisite connection between the taking and the force employed, our

Supreme Court has held that “it makes no difference whether the intent to steal was

formulated before the use of force or after it, so long as the theft and the use or threat

of force can be perceived by the jury as constituting a single transaction.” State v.

Fields, 315 N.C. 191, 203, 337 S.E.2d 518, 525 (1985); see also State v. Rasor, 319 N.C.

577, 587, 356 S.E.2d 328, 335 (1987) (holding whether defendant formulated intent

to take wallet before or after use of force immaterial to armed robbery charge so long

as taking and force were a part of a continuous transaction). Furthermore, “[t]he

exact time relationship . . . between the violence and the actual taking is unimportant



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as long as there is one continuing transaction.” State v. Bellamy, 159 N.C. App. 143,

149, 582 S.E.2d 663, 668 (2003) (internal marks and citation omitted); see also Porter,

198 N.C. App. at 187-88, 679 S.E.2d at 170 (applying continuous transaction doctrine

to common law robbery charge).

      Accordingly, even when there is some attenuation between the use of force and

the taking, the action can still amount to a continuous transaction. In State v. Reaves,

this Court found no merit in the defendant’s argument that his use of force and

subsequent taking of a patrolman’s revolver and patrol car were not joined in time

because he only formed the intent to take them after he had scuffled with the officer

and then tried to escape in his own automobile and found it locked. 9 N.C. App. 315,

317, 176 S.E.2d 13, 15 (1970). Relatedly, in Bellamy, the defendant stole videos from

a video store and fled with a store employee in pursuit. 159 N.C. App. at 145, 582

S.E.2d at 665-66. Given that “[t]he chase ended only about twenty feet from the video

store[,] at no time did the chase cease or Edison lose sight of defendant[,] and

defendant did not make good his escape until after threatening Edison with the

knife[,]” we held that “the taking and threatened use of force was so joined by time

and circumstances so as to constitute a single transaction.” Id. at 149, 582 S.E.2d at

668; but see State v. Frogge, 345 N.C. 614, 618, 481 S.E.2d 278, 280 (1997) (holding

“a reasonable person could have concluded that there was no continuous transaction”




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in felony murder case where defendant perpetrated violent act, left the premises, and

returned to take property hours later).

      Building on the above case law,

             if the force or intimidation by the use of firearms for the
             purpose of taking personal property has been used and
             caused the victim in possession or control to flee the
             premises and this is followed by the taking of the property
             in one continuous course of conduct, the taking is from the
             “presence” of the victim.

State v. Tuck, 173 N.C. App. 61, 67, 618 S.E.2d 265, 270 (2005) (internal marks and

citation omitted). In Tuck, a case concerning robbery with a dangerous weapon that

is nonetheless instructive, this Court held that the “presence” element was satisfied

where the shopkeeper fled her store “after [the] defendant approached her with a

handgun[,]” and then the defendant robbed the store. Id. at 68, 618 S.E.2d at 270-

71; see also State v. Herring, 74 N.C. App. 269, 271, 328 S.E.2d 23, 25 (1985) (holding

taking was “from the ‘presence’ of the victim” where defendant fired a gun into a car

to prompt the victim to flee and then stole items from the car).

      Viewing the evidence in the light most favorable to the State, Defendant’s

assault on Ms. Lineberry and his taking of her property constituted a single

transaction. There was substantial evidence that the assault, intimidation, and

taking all related to the car Defendant purchased for Ms. Lineberry.             More

particularly, the evidence permitted the reasonable inference that the clash over the

car informed Defendant’s argument with and assault on Ms. Lineberry and, in turn,


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her flight into her parents’ house. This argument was front and center in Defendant’s

conversation with Mr. Lineberry and motivated Defendant’s removal of Ms.

Lineberry’s keys, car title, and wallet from the car. And all of the above occurred in

an uninterrupted, 20-minute window.          Finally, Defendant remained physically

present in the same general location the entire time, moving only between the

driveway and the front porch.

      Relatedly, these facts analogize to cases where our Court has found a taking

from the victim’s presence. Here, as in Tuck and Herring, it was Defendant’s use of

force that caused Ms. Lineberry to flee, leaving her property behind for Defendant to

take. Ms. Lineberry was in her car with the keys in the ignition and the engine on

when Defendant parked behind her, and then began breaking into her car using a

rock, his fist, and a tire iron. After cutting off her escape route, he dragged her from

the car, forcing her to abandon her keys in the ignition as well as her wallet and the

vehicle title on the passenger’s seat. Had he not pulled her from the car and assaulted

her, causing her to flee for the house, the taking of her keys, wallet, and title would

not have been possible.

      Defendant relies on State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190

(1996), to assert that when property is some distance away from the victim the

“presence” requirement is not met; however, Barnes is legally and factually

distinguishable.   First, Barnes concerned the crime of larceny, not robbery, and



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larceny “is afforded special consideration [ ] to protect the person or immediate

presence of the victim from invasion.” 345 N.C. at 150, 478 S.E.2d at 191 (quoting 50

Am. Jur. 2d Larceny § 54 (1995)). In contrast, as discussed above, the robbery case

law focuses more broadly on the connection between the violence or intimidation and

the taking as opposed to more narrowly on whether a physical invasion occurred.

Second, in Barnes the victim left willingly and then returned when she suspected

theft. Id. Here, Ms. Lineberry was forced to flee, and that flight facilitated the

robbery.

      Viewing the evidence in the light most favorable to it, the State presented

substantial evidence that Defendant’s assault and taking were part of a continuous

transaction. We therefore hold that the trial court did not err in denying Defendant’s

motion to dismiss the charge of common law robbery.

                                 B. 404(b) Evidence

      Defendant next argues that the trial court erred in admitting evidence that

Defendant supplied Ms. Lineberry with heroin. We hold that any error, if present,

was not prejudicial.

                                i. Standard of Review

      In reviewing the admission of evidence of other crimes, wrongs, or acts of a

criminal defendant, we engage in a “three-pronged analysis.” State v. Adams, 220

N.C. App. 319, 323, 727 S.E.2d 577, 580-81 (2012). “[W]e first determine whether the



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evidence was offered for a proper purpose under Rule 404(b), then determine whether

the evidence is relevant under Rule 401, and finally determine whether the trial court

abused its discretion in balancing the probative value of the evidence under Rule

403.” Id. (internal marks and citation omitted).

      “The standard of review applied to the first two prongs of our analysis is de

novo[.]” Id. at 323, 727 S.E.2d at 581. “Under a de novo review, th[is C]ourt considers

the matter anew and freely substitutes its own judgment for that of the lower

tribunal.” Williams, 362 N.C. at 632-33, 669 S.E.2d at 294 (citation and internal

marks omitted). “A trial court may be reversed for an abuse of discretion only upon

a showing that its ruling was so arbitrary that it could not have been the result of a

reasoned decision.” State v. Ward, 354 N.C. 231, 264, 555 S.E.2d 251, 272 (2001)

(citation omitted).

                                      ii. Merits

             Evidence of other crimes, wrongs, or acts is not admissible
             to prove the character of a person in order to show that he
             acted in conformity therewith. It may, however, be
             admissible for other purposes, such as proof of motive,
             opportunity, intent, preparation, plan, knowledge,
             identity, or absence of mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2019).        Evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

Id. § 8C-1, Rule 401. “Although relevant, evidence may be excluded if its probative


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value is substantially outweighed by the danger of unfair prejudice[.]” Id. § 8C-1,

Rule 403. However,

             [e]ven where evidence is erroneously admitted because it is
             irrelevant or prejudicial, the defendant has the burden of
             showing that the error was not harmless, that “there [was]
             a reasonable possibility that, had the error in question not
             been committed, a different result would have been
             reached at the trial[.]”

State v. Hyman, 153 N.C. App. 396, 402, 570 S.E.2d 745, 749 (2002) (quoting N.C.

Gen. Stat. § 15A-1443(a) (2002)).

      Here, the State presented evidence that Defendant provided Ms. Lineberry

with heroin during the course of their relationship. Defendant argues that this

evidence was inadmissible because the drug activity was unrelated to the charges he

faced. Defendant further argues that the admission of this evidence was particularly

prejudicial because Defendant is an African-American male, and this evidence

“heightened the risk of implicit racial bias against him.”

      Assuming without deciding that the trial court erred in admitting this

testimony, we cannot say there is a reasonable possibility that, had the trial court not

admitted this evidence, a different result would have been reached at trial. See N.C.

Gen. Stat. § 15A-1443(a) (2019). The unobjected-to evidence showed that Defendant

forced Ms. Lineberry out of her car after punching through her car window. The

evidence further showed that he grabbed her by the throat, and, after Ms. Lineberry

ran into her house, Defendant took her keys and car title and moved them to his car.


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Finally, Officer Gleave testified that he found Ms. Lineberry’s property on or in

Defendant’s car and that Defendant admitted to taking these items.

       Given the overwhelming evidence of Defendant’s guilt, we conclude Defendant

has not demonstrated that any alleged error prejudiced him.

                                   C. Attorney’s Fees

       Finally, Defendant argues that the trial court erred in ordering Defendant to

pay attorney’s fees absent notice and opportunity to be heard. We agree.

                            i. Petition for Writ of Certiorari

       Before we reach the merits of Defendant’s appeal of the trial court’s imposition

of a civil judgment for attorney’s fees, we first turn to Defendant’s petition for writ of

certiorari.

       Defendant entered an oral notice of appeal following entry of the criminal

judgment on 2 April 2019 but did not file a timely written notice of appeal of the civil

judgment for attorney’s fees as is required by North Carolina Rule of Appellate

Procedure 3(a). When “this Court cannot hear defendant’s direct appeal [due to

violation of a jurisdictional appellate rule], it does have the discretion to consider the

matter by granting a petition for writ of certiorari.” State v. McCoy, 171 N.C. App.

636, 638, 615 S.E.2d 319, 320 (2005) (citation omitted). A defendant may file a

petition for a writ of certiorari to appeal a civil judgment “when the right to prosecute

an appeal has been lost by failure to take timely action[.]” N.C. R. App. P. 21(a)(1).



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In accordance with Rule 21, this Court has discretion to grant the petition and review

the judgment. Id.

      As we have done in similar cases involving appeals from civil judgments

ordering indigent defendants to pay attorney’s fees, see, e.g., State v. Mangum, ___

N.C. App. ___, ___, 840 S.E.2d 862, 868 (2020); State v. Boykin, ___ N.C. App. ___, 840

S.E.2d 538, 2020 N.C. App. LEXIS 286, at *16 (2020) (unpublished), we grant

Defendant’s petition for writ of certiorari and reach the merits of Defendant’s

argument.

                                ii. Standard of Review

      Whether the trial court provided a defendant adequate “notice and an

opportunity to be heard regarding the total amount of hours and fees claimed by the

court-appointed attorney is a question of law,” which this Court reviews de novo.

State v. Patterson, ___ N.C. App. ___, ___, 839 S.E.2d 68, 73 (2020) (internal marks

and citation omitted). “Under a de novo review, th[is C]ourt considers the matter

anew and freely substitutes its own judgment for that of the lower tribunal.”

Williams, 362 N.C. at 632-33, 669 S.E.2d at 294 (citation and marks omitted).

                                      iii. Merits

      Pursuant to N.C. Gen. Stat. § 7A-455 (2019), a trial court may order an

indigent defendant who is convicted to pay for the amount of fees charged by the

defendant’s court-appointed attorney. However, this Court has held that before



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entering a judgment for attorney’s fees against an indigent defendant, the trial court

must afford the defendant notice and opportunity to be heard regarding the fees

charged. State v. Friend, 257 N.C. App. 516, 523, 809 S.E.2d 902, 907 (2018). In

evaluating whether the trial court provided adequate notice and an opportunity to be

heard, this Court assesses whether the trial court asked

             defendants—personally, not through counsel—whether
             they wish to be heard on the issue. Absent a colloquy
             directly with the defendant on this issue, the requirements
             of notice and opportunity to be heard will be satisfied only
             if there is other evidence in the record demonstrating that
             the defendant received notice, was aware of the
             opportunity to be heard on the issue, and chose not to be
             heard.

Id. This standard was established to provide “further guidance on what trial courts

should do to ensure that this Court can engage in meaningful appellate review when

defendants raise this issue.” Id. Thus, when there is no evidence in the record that

the defendant was personally notified and given the opportunity to be heard

“regarding the appointed attorney’s total hours or the total amount of fees imposed,”

then the “imposition of attorney’s fees must be vacated, even when the transcript

reveals that attorney’s fees were discussed following [the] defendant’s conviction.”

State v. Harris, 255 N.C. App. 653, 664, 805 S.E.2d 729, 737 (2017) (internal marks

and citation omitted).

      Here, there is no indication in the record that Defendant was heard or that he

understood he had a right to be heard on the issue of attorney’s fees. The trial court


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did not engage in any colloquy with Defendant regarding attorney’s fees. Given that

the trial court never directly asked Defendant whether he wished to be heard on the

issue and there is no other evidence that Defendant was afforded notice and

opportunity to be heard, we must vacate the civil judgment for attorney’s fees and

remand for further proceedings on this issue.

                                   III. Conclusion

      For the reasons stated above, we hold that Defendant received a trial free from

error. However, we vacate the trial court’s award of attorney’s fees.

      NO ERROR IN PART; VACATED IN PART AND REMANDED.

      Judge ZACHARY concurs.

      Judge BERGER concurs by separate opinion.




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                         Berger, J., concurring in separate opinion




No. COA19-1138 – State v. Young-Kirkpatrick


      BERGER, Judge, concurring in separate opinion.


      I concur with the majority opinion.

      However, on the issue of attorney’s fees, “Defendant knows from the initial

appointment of counsel that he is responsible for his court-appointed attorney’s fees.

But, this Court has created an avenue for these procedural appeals where defendants

suffer no prejudice. These appeals cost countless man-hours and tens-of-thousands of

dollars, and elevate form over substance.” State v. Mangum, ___ N.C. App. ___, ___,

840 S.E.2d 862, 871 (2020) (Berger, J., concurring).
