                            NO. COA14-251

                  NORTH CAROLINA COURT OF APPEALS

                       Filed: 16 September 2014


STATE OF NORTH CAROLINA

    v.                              Guilford County
                                    Nos. 12 CRS 77582-85
                                    13 CRS 24290
                                    12 CRS 77220-24
DELUNTA ALUNDUS HULL

    and

SHARRELLE LYNN DAVIS


    Appeal by defendants from judgments entered 6 August 2013

by Judge James M. Webb in Guilford County Superior Court.   Heard

in the Court of Appeals 28 August 2014.


    Roy Cooper, Attorney General, by Anne J. Brown and Richard
    H. Bradford, Special Deputy Attorneys General, for the
    State.

    Staples Hughes, Appellate Defender, by Charlesena Elliott
    Walker,   Assistant Appellate  Defender,  for  defendant-
    appellant Hull.

    Amanda S. Zimmer for defendant-appellant Davis.


    STEELMAN, Judge.


    Where there was evidence of all of the elements of the

charge of larceny from the person, the trial court did not err

in denying defendants’ motions to dismiss.    The trial court did
                                           -2-
not commit plain error in its jury instructions on that charge.

Where defendant was sentenced from the presumptive range, the

trial     court    did    not     err   by   failing        to   make    findings       in

mitigation or aggravation, or in not sentencing defendant from

the mitigated range.             Where the State presented evidence that

Stuart’s computer was in proximity to her and under her control,

the trial court did not err in declining to submit the lesser

charge of misdemeanor larceny to the jury.

                    I. Factual and Procedural Background

    On      8     May    2012,    Rashad     Perry,     Robert     Hawkins,        David

Williams, Gabrielle Stuart, Braielyn Peoples and Emory Matthews

were gathered at Hawkins’ apartment in Greensboro for “study and

fellowship” in preparation for exam week.                        Perry and Hawkins

stepped    outside,      and     were   approached     by    a   man    armed    with   a

handgun, who robbed them of their cellular telephones.                          Two more

people, Delunta Alandis Hull (Hull) and Sharrelle Lynn Davis

(Davis), then approached, and the five people – Perry, Hawkins,

Hull, Davis, and the gunman – entered Hawkins’ apartment.

    Davis pulled Perry             into the kitchen while Hull and the

gunman went through the apartment.                    Two laptop computers and

another cellular telephone were taken.                      One of the computers

belonged to Stuart.
                                               -3-
       Prior to the time of the theft, Stuart had been working on

her    physics       homework.          While     studying,    Stuart,     along     with

Peoples, Hawkins, Matthews, and Perry, was playing a computer

game called “Dance Central” on the television.                       Each would take

turns playing         the game.          At the time of the theft, it was

Stuart’s turn to play.                 Shortly after her turn started, Stuart

was “knocked [] out of the game and [] realized something was

out of order.”            She saw that Hull and the gunman had possession

of her laptop, which had been on a table three feet away from

her, with her homework still visible on the screen.

       Davis and Hull were each indicted on four counts of robbery

with a dangerous weapon, and one count of first-degree burglary.

At    the    close      of     the    State’s    evidence,    defendants     moved    to

dismiss the charges.             The trial court granted these motions with

respect to the robbery with a dangerous weapon of Stuart, and

denied      them   as     to    the    other    charges.      With   respect   to     the

robbery of Stuart, the trial court submitted the lesser included

offense of larceny from the person to the jury.

       Defendants were found guilty of all charges.                          Hull was

sentenced to consecutive active prison terms of 51-74 months for

the    robbery       of      Hawkins,     51-74      months   for    the   robbery     of

Williams, and 5-15 months for the larceny from Stuart.                         He was
                                       -4-
also sentenced to concurrent active prison terms of 51-74 months

for   the   robbery    of   Perry   and    51-74    months      for    first-degree

burglary.      Davis   was    sentenced      to   consecutive         active   prison

terms of 57-81 months for the robbery of Hawkins, 57-81 months

for the robbery of Williams, and 6-17 months for the larceny

from Stuart.     She was also sentenced to concurrent active prison

terms of 57-81 months for the robbery of Perry, and 57-81 months

for first-degree burglary.

      Defendants appeal.

                       II. Larceny from the Person

      In    defendants’     first   and   second    arguments,         they    contend

that the trial court erred by denying their motions to dismiss

the   charge    of    larceny   from      the     person   as    to     Stuart,    or

alternatively that the trial court committed plain error when it

instructed the jury on that offense.              We disagree.

                            A. Standard of Review

      “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).

      We review “unpreserved issues for plain error when they

involve either (1) errors in the judge’s instructions to the
                                  -5-
jury, or (2) rulings on the admissibility of evidence.” State v.

Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).

          [T]he plain error rule ... is always to be
          applied   cautiously   and    only   in  the
          exceptional case where, after reviewing the
          entire record, it can be said the claimed
          error is a “fundamental error, something so
          basic, so prejudicial, so lacking in its
          elements that justice cannot have been
          done,” or “where [the error] is grave error
          which amounts to a denial of a fundamental
          right of the accused,” or the error has
          “‘resulted in a miscarriage of justice or in
          the denial to appellant of a fair trial’” or
          where the error is such as to “seriously
          affect the fairness, integrity or public
          reputation of judicial proceedings” or where
          it can be fairly said “the instructional
          mistake had a probable impact on the jury's
          finding that the defendant was guilty.”

    State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,

333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

                              B. Analysis

    At   the   close   of   State’s   evidence,   defendants   moved   to

dismiss the charge of robbery as to Stuart.           The trial court

dismissed that charge, but submitted to the jury the             lesser

offense of larceny from the person.       On appeal, defendants first

contend that the trial court erred in denying their motions to

dismiss the charge of larceny from the person.
                                             -6-
       The    essential      elements    of        larceny    are:    (1)    taking    the

property      of    another;    (2)    carrying       it     away;   (3)     without   the

owner’s consent; and (4) with intent to permanently deprive the

owner of the property.           State v. Wilson, 154 N.C. App. 686, 690,

573 S.E.2d 193, 196 (2002).                  It is larceny from the person if

the property is taken from the victim’s person or “within the

victim’s protection and presence at the time of the taking.”

Id. at 691, 573 S.E.2d at 196 (quoting State v. Barnes, 121 N.C.

App. 503, 505, 466 S.E.2d 294, 296, aff’d, 345 N.C. 146, 478

S.E.2d 188 (1996)).

       In    the   instant     case,    the    State       presented    evidence       that

Stuart was using her computer to do her physics homework and,

while studying, was also playing a computer game called “Dance

Central.”      The game was operated by a Kinect video game system

connected to Hawkins’ television.                   A participant of the game was

to    duplicate      dance     moves    on    the     television       display.        The

participant’s dance moves were captured by a video camera and

the    game        then   compared       the        displayed        moves     with     the

participant’s moves in a side by side display.

       When defendants and the gunman entered the apartment, it

was Stuart’s turn to play the game.                     She had just started her

turn – Stuart testified that it was “shortly after I got like
                                       -7-
maybe like a verse -- like a couple of sentences into the song”

– when      Stuart was “bumped” by someone, which caused her to be

“kicked out” of the game.             At that point, she saw defendants

absconding with her laptop.

      Defendants contend that Stuart was unaware of the taking

until after it occurred; however, the evidence suggests that

Stuart became aware of the taking as it occurred.                 Specifically,

Matthews testified:

             I was pretty much oblivious to what was
             happening, so I was just like who was this
             person picking up [Stuart]'s laptop, and so
             I asked [Stuart], I said, "Do you know this
             person?" and she said, "No." I was like,
             "Well, she took your laptop."

      Stuart saw the laptop among the items that defendants were

stealing, and which were in the possession of defendants as they

exited the apartment.

      The   test   set   forth   in    Barnes   was     whether   the    property

stolen was taken from the victim’s person or within the victim’s

protection and presence when the property was stolen.                     Barnes,

121 N.C. App. at 505, 466 S.E.2d at 296.                In the instant case,

the   laptop   computer   was    not   on    Stuart’s    person   when    it   was

taken.      However, it was about three feet from Stuart, and the

homework, from which she was taking a momentary break, was still

on the computer screen.          The computer was therefore within her
                                            -8-
protection and presence at the time it was taken.                               The brief

break    from    her    studies      did    not    remove    the       laptop       from   her

protection or presence.

      The trial court did not err in denying the motions of the

defendants to dismiss the charge of larceny from the person at

the close of all of the evidence.

      Defendants next argue, in the alternative, that the trial

court erred in its instructions to the jury with regard to the

charge of larceny from the person.                    Since defendants failed to

object to the trial court’s jury instruction at trial, we review

this issue only for plain error.

      The trial court charged the jury in accordance with North

Carolina Pattern Jury Instruction Criminal 216.20 as follows:

“Property       is   stolen     from   the        person    if    it    was     under      the

protection of the person at the time.                  Property may be under the

protection of the person although not actually attached to her,

for that which is taken in her presence is, in law, taken from

her     person.”        See    N.C.P.I.,      Crim.        216.20,      fn.     1    (2011).

Defendants      contend       that   this    instruction         was    based       upon   the

Supreme Court case of State v. Buckom, 328 N.C. 313, 401 S.E.2d

362 (1991), and that since Buckom was decided, the Supreme Court

narrowed the         definition      of that element of larceny from the
                                      -9-
person.    Defendants cite to the case of State v. Barnes, in

which our Supreme 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.”        Barnes, 345 N.C. at 149, 478 S.E.2d at

190 (emphasis in original).

      Defendants   contend     that   Barnes    abrogated   the   holding   in

Buckom.   We hold that there is no substantial difference between

the   holdings   of   Buckom    and   Barnes.      In   Buckom,   the   Court

observed that:

           Taken in the context of the foregoing common
           law principles, “[p]roperty is stolen ‘from
           the person,’ if it was under the protection
           of the person at the time.... [P]roperty may
           be under the protection of the person
           although not actually ‘attached’ to him.” R.
           Perkins & R. Boyce, Criminal Law 342 (3d ed.
           1982) (footnotes omitted). For example, if a
           jeweler places diamonds on a counter for
           inspection   by   a   customer,  under   the
           jeweler's eye, the diamonds remain under the
           protection of the jeweler. Id. It has not
           been the general interpretation that larceny
           from the person “requires an actual taking
           from the person, and is not committed by a
           taking from the immediate presence and
           actual control of the person.... As said by
           Coke in the 1600's: ‘for that which is taken
           in his presence, is in law taken from his
           person.’ ” Id. at 342-43 (quoting 3 Coke,
           Institutes *69).
                                          -10-
Buckom, 328 N.C. at 317-18, 401 S.E.2d at 365.                       In Barnes, the

Court did not disagree with this analysis; in fact, it relied

upon Buckom:

               The crime of larceny from the person is
               regularly understood to include the taking
               of   property   “from  one's    presence and
               control.” Thus, 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.

State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996)

(citing, inter alia, Buckom, 328 N.C. at 317-18, 401 S.E.2d at

365)    (citations      omitted)      (emphasis         in   original).         Barnes

ultimately      distinguished       Buckom    based     upon   the    facts    of    the

case,    but     in   terms   of    the    law    the    two   opinions       were   in

agreement.       The addition of the words “at the time the property

is taken” adds nothing to the legal analysis of the elements of

the crime.       The only temporally relevant time is the time of the

theft itself.

       Even assuming arguendo that Barnes superseded the holding

in Buckom, defendants have failed to show how this impacts the

outcome of their case.             Whether we rely upon Buckom or Barnes,

there was substantial evidence that the property was taken from

Stuart’s presence, that she was using the computer to perform

her    physics    homework,    and     that      the    computer     was   under     her
                                 -11-
control or protection at the time it was taken.         Even had the

jury been instructed as defendants suggest, we         hold that it

would not have had a “probable impact on the jury's finding that

the defendant was guilty.”     Defendants have failed to show that

the trial court committed plain error in its jury instruction

concerning the charge of larceny from the person.

    This argument is without merit.

                        III. Mitigating Factor

    In her third argument, Davis contends that the trial court

abused its discretion by failing to find a statutory mitigating

factor, and by failing to consider mitigating evidence.           We

disagree.

                        A. Standard of Review

            The standard of review for application of
            mitigating    factors    is   an    abuse    of
            discretion.      The   court  shall    consider
            evidence   of    aggravating   or   mitigating
            factors present in the offense that make an
            aggravated    or    mitigated    sentence    as
            appropriate, but the decision to depart from
            the presumptive range is in the discretion
            of the court. The court shall make findings
            of the aggravating and mitigating factors
            present in the offense only if, in its
            discretion, it departs from the presumptive
            range of sentences specified in G.S. 15A–
            1340. 17(c)(2).

State v. Hagans, 177 N.C. App. 17, 31, 628 S.E.2d 776, 785

(2006) (citations and quotations omitted).
                                    -12-
                                 B. Analysis

      We have previously held that the trial court is required to

make findings of aggravating and mitigating factors “only if, in

its   discretion,    it   departs    from    the      presumptive      range   of

sentences[.]”      Hagans, 177 N.C. App. at 31, 628 S.E.2d at 785.

Davis was sentenced from the presumptive range.               Accordingly, we

hold that the trial court was not required to make findings of

aggravating   or    mitigating    factors,     or    to   impose   a   mitigated

range sentence.

      This argument is without merit.

                      IV. Lesser Included Offense

      In his third argument, Hull contends that the trial court

erred in denying defendant’s request to instruct the jury on the

lesser included offense of misdemeanor larceny with regard to

the theft of Stuart’s laptop computer.              We disagree.

                          A. Standard of Review

      “[Arguments]     challenging     the     trial      court’s      decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009).   “An instruction on a lesser-included offense must be

given only if the evidence would permit the jury rationally to

find defendant guilty of the lesser offense and to acquit him of
                                         -13-
the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d

767, 771 (2002).

                                   B. Analysis

      Hull contends that Stuart’s lack of awareness of the theft

as it happened did not support a conviction of larceny from the

person, but rather supported a conviction for the lesser offense

of misdemeanor larceny.           Hull cites to our decision in State v.

Lee, 88 N.C. App. 478, 363 S.E.2d 646 (1988), in which we held

that the theft of a woman’s purse from a shopping cart while she

was   several    steps     away    and    unaware       of    the   theft    did    not

constitute      larceny    from    the    person,       but    rather     constituted

misdemeanor larceny.

      Hull,   in     his   argument      on     appeal,      challenges     only    the

element of proximity and control.                As he does not challenge the

other elements of larceny from the person, we limit our review

only to proximity and control.                  See State v. Lucas, ___ N.C.

App. ___, ___, 758 S.E.2d 672, 676 (2014).

      We note first that Lee was decided prior to both Buckom and

Barnes, and that these later Supreme Court cases clarified the

law   of   larceny    from   the   person.         We   further     note    that,    in

contrast with the victim in Lee, who did not realize that the

theft had occurred until sometime later, the evidence in the
                                              -14-
instant     case        was    that     Stuart       became    aware        of    the       theft

immediately, as it was occurring.                    We hold that the instant case

is distinguishable from Lee.

      The     crucial         elements       of   larceny      from    the       person      are

proximity     and       control.         The      evidence     in     the    instant         case

supports both elements.               Stuart’s awareness, although not one of

the elements of the offense, is a factor to be considered in

analyzing     her       control.        As    stated    in    section       II   B     of    this

opinion, Stuart was sufficiently aware of the larceny as it

occurred to have been in control of her property.

      Because the evidence satisfied the element of proximity and

control, and Hull challenges no other elements of larceny from

the   person,      we    hold    that    the      evidence     satisfied         all    of    the

requirements of the greater offense.                         The trial court did not

err in declining to instruct the jury upon the lesser offense of

misdemeanor larceny.

      This argument is without merit.

      NO ERROR.

      Judge GEER concurs.

      Judge HUNTER, Robert N., Jr. concurred prior to 6 September

      2014.
