An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-663
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              No. 11 CRS 228136
BERVIN LAQUINT BROOKS



      Appeal by Defendant from judgment entered 16 January 2013

by Judge     Donald W. Stephens         in   Superior Court,        Wake County.

Heard in the Court of Appeals 19 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Lisa Bradley, for the State.

      Irving Joyner for Defendant.


      McGEE, Judge.


      The State’s evidence tended to show that on 17 November

2011,      Tahsin   Haopshy     (“Haopshy”)       was    working     as    a   Loss

Prevention Officer at the Rugged Warehouse, a retail clothing

store in Raleigh         (“the store”).        At approximately 2:25 p.m.,

while monitoring the store’s security cameras, Haopshy noticed a

man, later identified as Bervin Laquint Brooks (“Defendant”), in

the ladies’ department carrying several girls’ skirts, and a
                                               -2-
men’s jacket.            Haopshy observed Defendant push the skirts down

the front of his pants while attempting to use the jacket to

cover his actions.

      In order to confront Defendant, Haopshy left the cameras

and    saw         Defendant         leaving    the    store.          Haopshy       followed

Defendant      from           the   store    into     the    parking         lot   where     he

approached Defendant and said: “Sir, I am with loss prevention

for the store; I need you to stop and talk about the merchandise

you have down your pants.” Defendant did not respond, so Haopshy

called out again.              Defendant then turned toward Haopshy and held

an    electric          stun    device      threateningly        in    the    direction      of

Haopshy, who            was    about three feet from Defendant and                        moving

toward Defendant.               Haopshy then heard “the sound of electricity

crackling” and saw “an arc” when the stun device was activated.

Haopshy      testified          that   Defendant      repeated:         “Back      off,    back

away,”     as Defendant             pointed the      stun device at           Haopshy “and

lunged towards [him] with it.”                       Haopshy testified: “I backed

off[,]” and Defendant “took off to his car.”                           Haopshy noted the

make and model of the vehicle in which Defendant drove away, and

noted that the vehicle had a temporary North Carolina tag.

      Defendant was subsequently arrested and identified as the

man   in     the    surveillance         videos,     and    as   the    man     Haopshy     had

confronted         in    the    parking      lot.     Defendant        was    indicted      for
                                     -3-
common law robbery on 20 February 2012 and, following a jury

trial,   was   found   guilty   on   16    January   2013.   Defendant   was

sentenced to an active sentence of twelve to fifteen months.

Defendant appeals.

                                      I.

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

erred by refusing to dismiss the charge of common law robbery at

the close of all the evidence.        We disagree.

    The standard the trial court applies when a defendant moves

to dismiss a charge is as follows:

           “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.”   “Whether the evidence presented
           constitutes   substantial  evidence   is   a
           question of law for the trial court.”
           Evidence is deemed “substantial” if the
           evidence is “existing and real, not just
           seeming or imaginary.” In reviewing

                 “the sufficiency of circumstantial
                 evidence, the question for the
                 Court is whether a reasonable
                 inference of defendant's guilt may
                 be drawn from the circumstances.
                 If so, it is for the jury to
                 decide whether the facts, taken
                 singly or in combination, satisfy
                 them beyond a reasonable doubt
                 that the defendant is actually
                 guilty.”

           In making its determination, the trial court
                                       -4-
            must consider all evidence admitted, whether
            competent or incompetent, 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, 192-93, 451 S.E.2d 211, 222-23

(1994) (citations omitted).           We review de novo the trial court’s

ruling on a motion to dismiss.               State v. Smith, 186 N.C. App.

57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).               Robbery is

a common law offense, which is generally described as: “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. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270

(1982) (citations omitted).

                                        A.

      Defendant   first      argues    that   the   indictment    was   fatally

defective.     Defendant contends that the indictment failed to

properly allege the owner of the personal property – the skirts

–   that   Defendant   was    charged    with    taking.    The    challenged

indictment reads as follows:

            THE JURORS FOR THE STATE UPON THEIR OATH
            PRESENT that on or about the 17th day of
            November 2011, in Wake County, the defendant
            named above [did] unlawfully, willfully, and
            feloniously steal, take and carry away,
            three female skirts, having a value of
            $27.97 in US currency, from the person and
            presence of Tahsin Haopshy by means of an
            assault upon him consisting of the forcible
            and violent taking of the property.     This
                                       -5-
             was done in violation of N.C.G.S. § 14-87.1.

Defendant    argues    that,    because      larceny   is    a   lesser    included

offense of common law robbery and a larceny indictment must

allege the owner of the stolen property, this indictment for

common     law   robbery,     which   does    not   state    the   owner    of    the

skirts, is fatally defective.                Though Defendant is correct in

stating that larceny is a lesser included offense of common law

robbery, State v. White, 322 N.C. 506, 514, 369 S.E.2d 813, 817

(1988), and that the general rule is that a greater offense must

have all the essential elements of a lesser included offense,

Id.   at   513-14,    369    S.E.2d   at     816-17,   our   Supreme      Court   has

decided that this requirement does not apply for larceny and

common law robbery.          Id. at 517, 369 S.E.2d at 819, see also Id.

at 519, 369 S.E.2d at 820 (Justice Webb dissenting).

      Concerning indictments for common law robbery, our Supreme

court has held that

             it is not necessary that ownership of the
             property be laid in a particular person in
             order to allege and prove . . . robbery.
             The gist of the offense of robbery is the
             taking by force or putting in fear.       An
             indictment for robbery will not fail if the
             description of the property is sufficient to
             show it to be the subject of robbery and
             negates the idea that the accused was taking
             his own property.

State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972)

(citations       omitted).      Defendant’s      indictment      for   common     law
                                      -6-
robbery was not defective because it failed to properly identify

the owner of the property, and the trial court did not err in

refusing to dismiss the common law robbery charge.

                                      B.

       Defendant   further   argues    that    there     was    not   sufficient

evidence presented at trial that “Haopshy was ever placed in

fear   and   apprehension    or   was,      otherwise,    the    victim   of   a

forcible and violent taking of the property[.]”                The evidence at

trial, taken in the light most favorable to the State, showed

that, after observing Defendant conceal skirts belonging to the

store in Defendant’s pants, Haopshy followed Defendant out to

the parking lot.      Haopshy confronted Defendant about the stolen

merchandise    concealed     in   Defendant’s      pants,       and    Defendant

“turned around and pulled a device out of his pocket, out of his

hoody pocket, and pointed it at [Haopshy].”                Haopshy heard the

device crackle and saw electricity arcing from the end of the

device and recognized it as a stun device.                 Haopshy testified

that Defendant said: “Back off.”            Haopshy further testified that

Defendant “just repeated that same thing, [b]ack off, back away,

as he pointed this device at me and lunged towards me with it.”

Haopshy retreated and Defendant “took off” to his car with the

stolen merchandise.
                                                 -7-
       We hold that this evidence was sufficient to show the non-

consensual     taking          of    personal         property   from   the     presence    of

another by means of fear.                   Smith, 305 N.C. at 700, 292 S.E.2d at

270.     The fact that the use of the stun device occurred after

Defendant took the merchandise from the store is of no moment on

these facts.         See State v. Gaither, 161 N.C. App. 96, 100, 587

S.E.2d      505,    508       (2003)        (citations       omitted)     (“A   defendant's

threatened         use    of    his        gun   is    deemed    concomitant       with    and

inseparable from his robbery attempt where the evidence shows

that (1) the gun was used to facilitate the defendant's escape,

and    (2)    the        taking       of     property        coupled    with    the   escape

constitutes one continuous transaction.                          This standard applies

even   if    there       is    no     evidence        that    defendant     used   force   or

intimidation        before          the    taking      of    property.”).       Defendant’s

first argument is without merit.

                                                 II.

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

improperly charged the jury on the crime of common law robbery.

We disagree.

       Defendant contends the trial court improperly attempted to

correct a fatal deficiency in the indictment by instructing the

jury that, in order to convict on common law robbery, the jury

must find that Defendant “carried away property of [the store]”
                                             -8-
when   the     indictment       fatally      failed       to     identify      to    whom      the

property belonged.             Defendant’s argument is predicated on his

erroneous contention that establishing ownership of the property

taken was an essential element of common law robbery.                                 Because

identifying the owner of the property was not an element of the

charge of common law robbery, Defendant’s second argument fails.

                                             III.

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

erred by instructing the jury on flight.                        We disagree.

       As Defendant acknowledges, “jury instructions relating to

the    issue    of    flight    are     proper      as     long       as    there    is    ‘some

evidence in the record reasonably supporting the theory that the

defendant      fled    after    the    commission          of    the       crime    charged.’”

State v. Allen, 346 N.C. 731, 741, 488 S.E.2d 188, 193 (1997)

(citations      omitted).         According         to    Haopshy,         after     Defendant

threatened                        him                            with                          the

stun device, causing Haopshy to retreat, Defendant “took off to

his car” and drove away.                We hold this testimony constituted

“‘some evidence in the record reasonably supporting the theory

that    the    defendant       fled    after       the    commission         of     the    crime

charged.’”        Id.      As    our    Supreme          Court    has      noted,     “‘[m]ere

evidence      that    defendant       left    the    scene       of    the    crime       is   not

enough to support an instruction on flight.                           There must also be
                               -9-
some evidence that defendant took steps to avoid apprehension.’”

State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625-26 (2001)

(citation omitted).   Defendant’s use of a stun device to prevent

Haopshy   from   detaining   him     satisfies   this   requirement.

Defendant’s final argument is without merit.

    No error.

    Judges BRYANT and STROUD concur.

    Report per Rule 30(e).
