An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-819
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Rockingham County
                                              No. 10 CRS 54259
MARC ALBERT MANN



      Appeal by defendant from judgment entered 17 January 2013

by Judge Edwin G. Wilson in Rockingham County Superior Court.

Heard in the Court of Appeals on 31 March 2014.


      Roy Cooper, Attorney General, by M. Lynne Weaver, Special
      Deputy Attorney General, for the State.

      Kimberly P. Hoppin for defendant-appellant.


      DAVIS, Judge.


      Defendant Marc Albert Mann (“Defendant”) appeals from the

judgment entered after a jury found him guilty of robbery with a

dangerous       weapon      and      interfering        with     an     emergency

communication.       On appeal, Defendant contends that (1) the trial

court erred by denying his motion to dismiss the robbery charge;

and (2) the State failed to present sufficient evidence that

Virginia offenses included in his prior record level calculation
                                         -2-
were substantially similar to North Carolina offenses.                     After

careful review, we find that Defendant received a fair trial

free from error but remand for a new sentencing hearing.

                              Factual Background

       On 14 November 2010, Sally Lopez (“Ms. Lopez”) was working

at a Dollar General store in Eden, North Carolina when Defendant

entered the store with April Cannoy (“Ms. Cannoy”) and another

man.     The other man had driven Defendant and Ms. Cannoy to the

store.     Ms. Lopez had a key to the office where the store’s

video surveillance equipment was located and was responsible for

monitoring shoplifting.            Ms. Lopez noticed        Ms. Cannoy had a

large, mostly empty pocketbook and had placed the bag in the

child    seat   of   her    shopping     cart.   Defendant    and   Ms.   Cannoy

walked around the store together, and Ms. Lopez used the video

equipment to observe Ms. Cannoy pick up candles and batteries

and place them in her shopping cart.                 Defendant and Ms. Cannoy

left without paying for the items, and Ms. Lopez followed them

out of the store.

       When Ms. Lopez confronted them, Ms. Cannoy denied that she

had taken anything.          Ms. Lopez threatened to call the police,

and when she took out her phone, Defendant pulled the phone out

of   her   hand,     took    out   the    battery,    and   broke   the   phone.
                                 -3-
Defendant then held a switchblade-style knife to Ms. Lopez’s

forehead and threatened to kill her.        Ms. Cannoy tried to pull

Defendant away and told him they should leave.        Ms. Cannoy and

Defendant then left with the man who had driven them to the

store.   Ms. Lopez ran back in the store and called 911.

    At trial, Ms. Cannoy testified that she and Defendant stole

items every time they went shopping together and that she put

her pocketbook in the child seat of the shopping cart because it

made it easier to steal.   Ms. Cannoy admitted that she stole the

candles, the batteries, and a necklace and stated that Defendant

knew she took these items from the store.

    The jury found Defendant guilty of robbery with a dangerous

weapon and interfering with an emergency communication.          The

trial court consolidated the convictions into one judgment and

sentenced Defendant to 72 to 96 months imprisonment.       Defendant

gave timely notice of appeal.

                             Analysis

I. Denial Of Motion to Dismiss

    In his first argument on appeal, Defendant contends the

trial court erred by denying his motion to dismiss the robbery

with a dangerous weapon    charge      because the evidence did not

support the State’s theory that Defendant acted in concert with
                                        -4-
Ms. Cannoy or that he used force concomitant with the taking of

property.      We disagree.

       “When a defendant moves to dismiss a charge against him on

the ground of insufficiency of the evidence, the trial court

must determine whether there is substantial evidence of each

essential element of the offense charged and of the defendant

being the perpetrator of the offense.”                   State v. Garcia, 358

N.C.    382,    412,   597    S.E.2d    724,     746     (2004)    (citation      and

quotation      marks   omitted),    cert.      denied,    543     U.S.   1156,    161

L.Ed.2d 122 (2005).          “In reviewing challenges to the sufficiency

of evidence, [the appellate court] must view the evidence in the

light most favorable to the State, giving the State the benefit

of all reasonable inferences.”                State v. Scott, 356 N.C. 591,

596, 573 S.E.2d 866, 869 (2002) (citation omitted).

       The first part of Defendant’s argument is that the State

offered insufficient evidence that he acted in concert with Ms.

Cannoy.     “To act in concert means to act together, in harmony or

in conjunction one with another pursuant to a common plan or

purpose.”      State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390,

395 (1979) (citation omitted).                “[I]f two persons join in a

purpose   to     commit   a    crime,   each     of    them,      if   actually   or

constructively present, is not only guilty as a principal if the
                                              -5-
other commits that particular crime, but he is also guilty of

any   other     crime    committed      by     the   other   in   pursuance   of    the

common purpose . . . or as a natural or probable consequence

thereof.”       State v. Erlewine, 328 N.C. 626, 637, 403 S.E.2d 280,

286 (1991) (citation and quotation marks omitted).

       Viewed in the light most favorable to the State, there was

ample evidence that Defendant acted in concert with Ms. Cannoy

to    commit    the     robbery.        The    State   introduced    evidence      that

Defendant arrived at the store with Ms. Cannoy, moved through

the store with Ms. Cannoy as she took items, left the store with

Ms. Cannoy without paying for those items, and then threatened

Ms. Lopez with a knife in response to her confrontation about

the stolen merchandise.             Ms. Cannoy also testified that she and

Defendant frequently stole items from stores together, and that

Defendant knew she was taking the items from the store.                              We

conclude that this constituted sufficient evidence of concerted

action.

       The     second    part      of   Defendant’s      argument     is   that    the

evidence did not establish that his use of force was concomitant

with the taking of property.                   “To obtain a conviction for the

offense of armed robbery, the State must prove three elements:

(1) the unlawful taking or attempted taking of personal property
                                            -6-
from    another;       (2)   the    possession,        use   or    threatened        use    of

firearms or other dangerous weapon, implement or means; and (3)

danger or threat to the life of the victim.”                           In re Stowe, 118

N.C. App. 662, 664, 456 S.E.2d 336, 338 (1995) (citation and

quotation      marks     omitted);        see   also     N.C.     Gen.   Stat.       §   14-87

(2011).

       The element of violence must precede or be concomitant with

the taking in order for the crime of robbery with a dangerous

weapon to be committed.               The taking is not complete until the

thief removes the property from the victim’s possession.                                 State

v.   Sumpter,     318    N.C.      102,    111,    347   S.E.2d        396,    401   (1986).

“Property is in the legal possession of a person if it is under

the protection of that person.”                   State v. Bellamy, 159 N.C. App.

143, 149, 582 S.E.2d 663, 668, cert. denied, 357 N.C. 579, 589

S.E.2d 130 (2003) (citation omitted).                        “Thus, just because a

thief    has    physically         taken   an     item   does     not    mean    that      its

rightful       owner    no   longer       has   possession        of    it.”     State      v.

Barnes, 125 N.C. App. 75, 79, 479 S.E.2d 236, 238, aff’d per

curiam, 347 N.C. 350, 492 S.E.2d 355 (1997).                           As a result, this

Court has held that a robbery occurs when the taking of property

and violent acts are part of a “continuous transaction,” even if

the violence occurs after the Defendant has physically taken the
                                               -7-
property.       State v. Porter, 198 N.C. App. 183, 188, 679 S.E.2d

167, 170 (2009).

      Once     again,     viewed       in    the     light       most    favorable     to    the

State,    the    evidence        was     sufficient         to    withstand       Defendant’s

motion    to    dismiss.         Ms.     Lopez       confronted         Defendant      and   Ms.

Cannoy    about      having      taken      the     stolen       merchandise      immediately

after they exited the store.                   Defendant responded to her inquiry

by knocking the phone from her hand and placing a knife against

her forehead.         Defendant’s actions and threat of violence caused

Ms.   Lopez     to    retreat     to     the      store    before       calling    for   help.

Accordingly,         we   hold    that      there     was       sufficient       evidence    to

support    the       trial    court’s        denial        of    Defendant’s      motion      to

dismiss the robbery with a dangerous weapon charge.

II. Determination of Defendant’s Prior Record Level

      In Defendant’s final argument, he contends the trial court

erred by including points for Virginia offenses in its prior

record    level      calculation         where       the    State       failed    to   present

sufficient       evidence        that       those     offenses          were   substantially

similar to North Carolina offenses.                        The State concedes that it

cannot distinguish this case from State v. Burgess, 216 N.C.

App. 54, 715 S.E.2d 867 (2011), and we agree.
                                           -8-
       In   Burgess,       the    defendant      stipulated     to    a   prior    record

level calculation that was based on the State’s proffered prior

record      level    worksheet,       which      included     offenses     from     other

jurisdictions.        The State offered no further evidence to support

the trial court’s prior record level calculation.                          Id. at 57,

715 S.E.2d at 870.               We held that the State failed to meet its

burden of proof under N.C. Gen. Stat. § 15A-1340.14(e) and State

v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600 (2006), because a

defendant cannot stipulate to the issue of whether out-of-state

convictions         were    substantially          similar      to    North      Carolina

offenses.      Accordingly, we remanded for resentencing.                          Id. at

252, 623 S.E.2d at 602.

       Similarly, here Defendant stipulated to the contents of the

State’s prior record level worksheet through counsel.                           All seven

of Defendant’s prior record level points were based on Virginia

offenses.       Three      of     those   points    were     assigned     for     Class    1

misdemeanors, and the State offered no further evidence that

they    were   substantially          similar      to   North    Carolina        Class     1

misdemeanors.         The default classification for misdemeanors from

another jurisdiction, in the absence of such evidence, is Class

3.     N.C. Gen. Stat. § 15A-1340.14(e) (2011).                      Without the three

points      improperly      assigned      for    those     misdemeanors         based     on
                                     -9-
Defendant’s   ineffective    stipulation,      Defendant’s    prior   record

level would be II rather than III.              N.C. Gen. Stat. § 15A-

1340.14(c).     Accordingly,     we    must    remand   for   resentencing.

Burgess, 216 N.C. App. at 57, 715 S.E.2d at 870.

                               Conclusion

    For   the   reasons     stated    above,   we   find   that   Defendant

received a fair trial free from prejudicial error but remand for

a new sentencing hearing.

    NO ERROR IN PART; REMANDED FOR RESENTENCING.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
