               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA18-692

                                    Filed: 5 March 2019

Onslow County, Nos. 15 CRS 54673, 15 CRS 54665

STATE OF NORTH CAROLINA,

              v.

JAMES A. COX


       Appeal by Defendant from Judgments entered 16 January 2018 by Judge

William W. Bland in Onslow County Superior Court. Heard in the Court of Appeals

28 January 2019.


       Attorney General Joshua H. Stein, by Assistant Attorney General James D.
       Concepción, for the State.

       The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for
       defendant-appellant.


       HAMPSON, Judge.


                        Factual and Procedural Background

       James A. Cox (Defendant) appeals from his convictions for Conspiracy to

Commit Armed Robbery with a Dangerous Weapon and Felonious Breaking or

Entering.1 The evidence presented at trial tends to show the following:




       1Defendant was also convicted of Discharging a Weapon into an Occupied Property but raises
no arguments on appeal regarding this offense.
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                                  Opinion of the Court



      Sometime prior to the night of 8 August 2015, Defendant gave Richard Linn

(Linn) $20.00 to purchase Percocet tablets or other drugs. Linn testified he regularly

used Angela Leisure (Leisure) as a go-between to purchase drugs. On this occasion,

Linn added his own money to Defendant’s and gave Leisure approximately $50.00 or

$60.00. Leisure admitted she never purchased the drugs and never returned the

money to Linn.

      Linn further testified on the evening of 8 August 2015, Defendant and his

girlfriend, Ashley Jackson (Jackson), arrived at Linn’s house and demanded he come

outside. Defendant was standing outside with a gun in his hand and told Linn to “get

in the car.” Linn stated Defendant and Jackson wanted to go to Leisure’s house “to

talk to her about their money.” After getting in the car, Linn directed Defendant to

Leisure’s house.

      Leisure’s boyfriend, Daniel McMinn (McMinn), testified he was standing

outside of Leisure’s home when Defendant, Jackson, and Linn arrived. Jackson asked

McMinn where Leisure was. Jackson and Defendant entered the house and McMinn

followed. After entering the home, Jackson attacked Leisure by pulling her hair,

punching her, and forcing her to the ground. Leisure recalled Jackson saying, “give

me my money” or “give me the money.” McMinn testified he reached for his cell phone

to call the police, but he stopped when he saw Defendant display a handgun “in a

threatening way.”



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                                       Opinion of the Court



       After several minutes of fighting, Linn called Jackson off, saying: “I think she’s

had enough. Come on, let’s go.” Defendant, Jackson, and Linn left the house. Linn

testified once outside Defendant turned and kicked a hole in the door. Defendant also

fired a shot into Leisure’s home, which struck a mirrored door inside the home.

Defendant, Jackson, and Linn left Leisure’s home without obtaining any money or

personal property.

       Based on these events, Defendant was arrested and charged with First-Degree

Burglary, Conspiracy to Commit Robbery with a Dangerous Weapon, and

Discharging a Weapon into an Occupied Property.2                       Following the State’s

presentation of evidence, Defendant moved to dismiss all charges. This Motion was

denied.

       Subsequently, Defendant presented evidence, including his own testimony.

Defendant’s evidence tended to show he went to Linn’s house on 8 August 2015 to

give Linn $20.00 to purchase pain relievers for Jackson. Later in the evening, Linn

requested Defendant pick him up because Leisure had taken the money and would

not answer his phone calls. Linn said he would talk to Leisure in person and get

Defendant’s money back. Defendant claimed no one, including himself, had a weapon

on 8 August 2015 and that Jackson kicked in the door, not Defendant. At the close




       2Jackson was charged as a co-defendant with Conspiracy to Commit Robbery with a
Dangerous Weapon, First-Degree Burglary, and Simple Assault, and their cases were joined for trial.

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                                  Opinion of the Court



of all the evidence, Defendant renewed his Motion to Dismiss all charges, which the

trial court denied.

      After instructing the jury, the trial court provided the jury with written copies

of its jury instructions. After deliberating for approximately two hours, the jury

returned a note with two questions related to the Conspiracy charge: The first

question stated, “Can we get clarification of ‘While the defendant knows that the

defendant is not entitled to take the property,’ ” which was part of the definition in

the jury instructions on Conspiracy to Commit Robbery with a Dangerous Weapon.

The jury’s second question asked, “Is it still Robbery to take back one owns [sic]

property?” After conferring with counsel, and without any objection by Defendant’s

trial counsel, the trial court declined to answer the jury’s two questions directly.

Instead, the trial court referred the jury back to its written copy of the jury

instructions.

      On 16 January 2018, the jury returned a verdict finding Defendant guilty of

Felonious Breaking or Entering, Conspiracy to Commit Robbery with a Dangerous

Weapon, and Discharging a Weapon into an Occupied Property. The trial court

entered a consolidated judgment on the Conspiracy to Commit Robbery with a

Dangerous Weapon and Discharging a Weapon into an Occupied Property charges,

sentencing Defendant to a minimum of 60 months and a maximum of 84 months in

the custody of the North Carolina Department of Adult Correction. On the Felonious



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                                   Opinion of the Court



Breaking or Entering charge, Defendant received a suspended sentence of 6 to 17

months and was placed on supervised probation for a term of 24 months. Defendant

gave oral notice of appeal at trial. This Court has jurisdiction to hear Defendant’s

appeal under N.C. Gen. Stat. § 7A-27(b)(1) (2017) and N.C.R. App. P. 4(a)(1).

                                        Issues

      Defendant raises several issues including whether the trial court committed

plain error in refusing to answer the jury’s questions or whether his trial counsel

committed ineffective assistance of counsel by failing to request further instructions

in response to the jury’s questions. However, the dispositive issues in this case, raised

by Defendant, are whether the trial court: (1) erroneously denied Defendant’s Motion

to Dismiss the charge of Conspiracy to Commit Robbery with a Dangerous Weapon

at the close of all the evidence; and (2) erroneously denied Defendant’s Motion to

Dismiss the charge of Felonious Breaking or Entering at the close of all the evidence.

                                       Analysis

      Defendant contends the trial court erred in denying his Motion to Dismiss the

Conspiracy to Commit Robbery with a Dangerous Weapon and Felonious Breaking

or Entering convictions based upon the sufficiency of the evidence. Defendant argues

the State presented no evidence Defendant possessed the requisite felonious intent

necessary for these two convictions. We agree.

                                 I. Standard of Review



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                                  Opinion of the Court



      This Court has stated:

              The standard for ruling on a motion to dismiss is whether
          there is substantial evidence (1) of each essential element of the
          offense charged and (2) that defendant is the perpetrator of the
          offense. Substantial evidence is relevant evidence which a
          reasonable mind might accept as adequate to support a
          conclusion. In ruling on a motion to dismiss, the trial court must
          consider all of the evidence in the light most favorable to the
          State, and the State is entitled to all reasonable inferences which
          may be drawn from the evidence. Any contradictions or
          discrepancies arising from the evidence are properly left for the
          jury to resolve and do not warrant dismissal.

State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (citations and

quotation marks omitted). “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)

(citation omitted).

            II. Conspiracy to Commit Robbery with a Dangerous Weapon

      “In order to prove a criminal conspiracy, the State must show an agreement

between two or more persons to do an unlawful act or to do a lawful act in an unlawful

way.” State v. Gray, 56 N.C. App. 667, 672, 289 S.E.2d 894, 897 (1982) (citation

omitted). In this case, the State had the burden to present substantial evidence

tending to show that Defendant and Jackson agreed to commit each element of

Robbery with a Dangerous Weapon against Leisure.

      “For the offense of robbery with a dangerous weapon, the State must prove ‘(1)

the unlawful taking or attempt to take personal property from the person or in the



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                                   Opinion of the Court



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. Pratt,

161 N.C. App. 161, 163, 587 S.E.2d 437, 439 (2003) (quoting State v. Wiggins, 334

N.C. 18, 35, 431 S.E.2d 755, 765 (1993)); see also N.C. Gen. Stat. § 14-87(a) (2017).

The taking or attempted taking must be done with felonious intent. State v. Norris,

264 N.C. 470, 472, 141 S.E.2d 869, 871 (1965) (quoting State v. Lawrence, 262 N.C.

162, 163-68, 136 S.E.2d 595, 597-600 (1964)).             Our Supreme Court has stated,

“Felonious intent is an essential element of the crime of robbery with firearms and

has been defined to be the intent to deprive the owner of his goods permanently and

to appropriate them to the taker’s own use.” State v. Brown, 300 N.C. 41, 47, 265

S.E.2d 191, 196 (1980) (citations omitted).

      Under existing North Carolina case law, a defendant can negate the element

of felonious intent by showing he took or attempted to take the property under a bona

fide claim of right or title to the property. See State v. Spratt, 265 N.C. 524, 144

S.E.2d 569 (1965). In Spratt, our Supreme Court stated, “A defendant is not guilty

of robbery if he forcibly takes personal property from the actual possession of another

under a bona fide claim of right or title to the property, or for the personal protection

and safety of defendant and others, or as a frolic, prank or practical joke, or under

color of official authority.”   Id. at 526-27, 144 S.E.2d at 571 (emphasis added)

(citations omitted).   Spratt, in turn, relied on a line of cases including State v.



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                                         Opinion of the Court



Lawrence. In Lawrence, the defendant was charged with robbery after assaulting the

victim because defendant claimed the victim “owed him something.” 262 N.C. at 168,

136 S.E.2d at 600. In granting a new trial, the Supreme Court held the defendant

was entitled to a jury instruction on felonious intent where the conflicting evidence

could permit a finding the taking was without felonious intent. Id.; see also N.C.P.I.—

Crim. 217.10 n.4 (June 2016) (pattern jury instruction for Common Law Robbery

specifically providing: “In the event that a defendant relies on claim of right, the jury

should be told that if the defendant honestly believed he was entitled to take the

property, he cannot be guilty of robbery”).3

        Decisions from this Court, however, have questioned Spratt and rejected the

notion that a defendant cannot be guilty of armed robbery where the defendant claims

a good-faith belief that he had an ownership interest in the property taken.4 See State

v. Oxner, 37 N.C. App. 600, 604, 246 S.E.2d 546, 548 (1978) (“We renounce the notions

that force be substituted for voluntary consent and violence be substituted for due

process of law.”), judgment aff’d without precedential value, 297 N.C. 44, 252 S.E.2d


        3 We note the pattern jury instructions for Robbery with a Firearm, Attempted Robbery with
a Firearm, and Robbery with a Dangerous Weapon Other than a Firearm do not include such express
language specific to this claim of right defense. Compare N.C.P.I.—Crim. 217.10 (June 2016) (Common
Law Robbery), with N.C.P.I.—Crim. 217.20 (June 2018) (Robbery with a Firearm), N.C.P.I.—Crim.
217.25 (May 2003) (Attempted Robbery with a Firearm), and N.C.P.I.—Crim. 217.30 (June 2018)
(Robbery with a Dangerous Weapon – Other than a Firearm). However, the element of felonious intent
is required for all of these offenses. See Spratt, 265 N.C. at 526, 144 S.E.2d at 571 (citation omitted).
        4 A review of other jurisdictions reveals a split across the country on whether a bona fide claim

of right defense precludes an armed robbery conviction. See generally Kristine Cordier Karnezis,
Annotation, Robbery, Attempted Robbery, or Assault to Commit Robbery, as Affected by Intent to Collect
or Secure Debt or Claim, 88 A.L.R.3d 1309 (1978 & Supp. 2018).

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                                   Opinion of the Court



705 (1979); State v. Willis, 127 N.C. App. 549, 552, 492 S.E.2d 43, 45 (1997). Oxner

presented similar facts as the case at bar: a claim of money owed related to a drug

deal and a charge of robbery with a firearm. 37 N.C. App. at 602-04, 246 S.E.2d at

547-48. However, on review, our Supreme Court divided equally, leaving this Court’s

opinion without precedential value. Moreover, Oxner differs from this case in that

there: (A) the defendant denied taking any property at all; and (B) the claim was

vague and related to an unliquidated amount. See id. at 604, 246 S.E.2d at 548. Here,

the claim was for specific amounts, there was no dispute Defendant—along with Linn

and Jackson—intended to recoup their money, and even Leisure admitted she owed

the money.

      In Willis, the defendant contended the State was required to prove the victim

actually owned the property taken in order for the offense to constitute armed

robbery. 127 N.C. App. at 551-52, 492 S.E.2d at 44-45. This Court rejected this

argument and held in the absence of any evidence showing the defendant had an

ownership interest in the property, the bona fide claim of right, or “self-help,” defense

simply did not apply. Id. In reaching its decision, however, this Court did question

the ongoing viability of Spratt. Id. at 552, 492 S.E.2d at 45. Nevertheless, to the

extent Willis is construed as conflicting with the earlier Supreme Court opinions in

Lawrence and Spratt, among others, we conclude we remain bound to follow and




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                                  Opinion of the Court



apply Spratt. See Respess v. Respess, 232 N.C. App. 611, 625, 754 S.E.2d 691, 701

(2014) (citations omitted).

      Here, unlike in Willis, the evidence at trial demonstrates Defendant, along

with Linn and Jackson, went to Leisure’s home to retrieve the money they provided

to Leisure for the purchase of drugs. The witnesses for both the State and defense

agreed Defendant, Linn, and Jackson were attempting to collect monies owed to

them. Defendant testified he gave Linn the money to purchase drugs from Leisure;

Linn told Defendant that he would talk to Leisure and get Defendant’s money back;

and that he, Jackson, and Linn went to Leisure’s house in an attempt to recover their

money. Both Linn and Leisure, who testified for the State, agreed that Defendant

and Jackson went to Leisure’s house to obtain money they believed was their

property. After a thorough review of the record, we conclude the State presented no

evidence tending to show Defendant possessed the necessary intent to commit

robbery. Rather, all of the evidence proffered at trial supports Defendant’s claim that

Defendant, Linn, and Jackson went to Leisure’s house to retrieve their own money.

Therefore, under Spratt, Defendant could not be guilty of Conspiracy to Commit

Robbery with a Dangerous Weapon because he—and his alleged co-conspirators—

held a good-faith claim of right to the money. See Spratt, 265 N.C. at 526-27, 144

S.E.2d at 571.




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                                  Opinion of the Court



      Because there was no evidence suggesting Defendant had an intent to take and

convert property belonging to another, the trial court erred in denying Defendant’s

Motion to Dismiss the charge of Conspiracy to Commit Robbery with a Dangerous

Weapon. Consequently, we reverse the Judgment on that charge.

                         III. Felonious Breaking or Entering

      “The essential elements of felonious breaking or entering are (1) the breaking

or entering (2) of any building (3) with the intent to commit any felony or larceny

therein.” State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992) (citation

omitted). Here, the trial court expressly instructed the jury that to convict Defendant

of Felonious Breaking or Entering, it was required to find Defendant intended to

commit Robbery with a Dangerous Weapon. As discussed above, the trial court erred

in denying Defendant’s Motion to Dismiss the charge of Conspiracy to Commit

Robbery with a Dangerous Weapon because Defendant lacked the necessary felonious

intent. Therefore, the trial court also erred in denying Defendant’s Motion to Dismiss

the charge of Felonious Breaking or Entering, which was expressly only predicated

on the felony of Robbery with a Dangerous Weapon.

      Nevertheless, the jury did find Defendant guilty of Felonious Breaking or

Entering, including finding the State had proven all of the elements of that offense.

“Misdemeanor breaking or entering, G.S. 14-54(b), is a lesser included offense of

felonious breaking or entering and requires only proof of wrongful breaking or entry



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                                  Opinion of the Court



into any building.” State v. O’Neal, 77 N.C. App. 600, 606, 335 S.E.2d 920, 924 (1985)

(citations omitted). Misdemeanor Breaking or Entering does not require a finding of

felonious intent.   See id.   As our holding above only negates the element of

Defendant’s felonious intent to commit Robbery with a Dangerous Weapon, the jury’s

verdict still supports finding Defendant guilty of Misdemeanor Breaking or Entering.

We reverse and remand to the trial court to arrest judgment on the charge of

Felonious Breaking or Entering and to enter judgment on Misdemeanor Breaking or

Entering. State v. Silas, 168 N.C. App. 627, 635, 609 S.E.2d 400, 406 (2005) (citation

omitted), modified on other grounds and aff’d, 360 N.C. 377, 627 S.E.2d 604 (2006).

                                    Conclusion

      Accordingly, we reverse the Defendant’s conviction for Conspiracy to Commit

Robbery with a Dangerous Weapon. Defendant did not challenge his conviction for

Discharging a Weapon into an Occupied Property; however, we remand for

resentencing because this offense was consolidated for judgment with Conspiracy to

Commit Robbery with a Dangerous Weapon.              Further, we reverse Defendant’s

conviction of Felonious Breaking or Entering and remand this matter for the trial

court to arrest judgment on Felonious Breaking or Entering and enter judgment

against Defendant for Misdemeanor Breaking or Entering.

      REVERSED IN PART AND REMANDED.

      Chief Judge McGEE and Judge HUNTER concur.



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