An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1079
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014


STATE OF NORTH CAROLINA

      v.                                      Forsyth County
                                              No. 12 CRS 60503
DAMEON JOSE GLOVER



      Appeal by defendant from judgment entered 9 April 2013 by

Judge L. Todd Burke in Forsyth County Superior Court.                      Heard in

the Court of Appeals on 31 March 2014.


      Roy Cooper, Attorney General, by Janelle                       E.     Varley,
      Assistant Attorney General for the State.

      J. Edward Yeager, Jr. for defendant-appellant.


      DAVIS, Judge.


      Dameon Jose Glover (“Defendant”) appeals from a judgment

entered    upon    a   jury   verdict     finding    him    guilty    of    assault

inflicting serious bodily injury.             On appeal, he argues that (1)

the trial court abused its discretion by denying his pre-trial

discovery motion; and (2) the trial court erred in finding that

his federal conviction of bank robbery was substantially similar
                                       -2-
to   the   North   Carolina    crime    of    common   law   robbery.      After

careful review, we affirm.

                               Factual Background

      The State presented evidence at trial tending to establish

the following facts:      On 5 October 2013, at approximately 1:36

a.m.,    Defendant   entered   the     West   End   Opera    House,   a   bar   in

Winston-Salem, North Carolina, with his friend, Torian Williams

(“Mr. Williams”) and sat next to a billiards table.                       Another

patron, Derek Pasko (“Mr. Pasko”), walked over to Defendant, and

they engaged in conversation.            The conversation soon escalated

into an argument.      The bar manager asked:           “[I]s everything all

right?”    Mr. Williams responded: “[I]t’s cool.”

      Mr. Pasko then exited through the rear door of the bar and

encountered a friend, Michael Thompson (“Mr. Thompson”), in the

parking lot behind the bar.          Defendant and Mr. Williams followed

Mr. Pasko outside.        As Mr. Pasko and Mr. Williams exchanged

words, Defendant approached Mr. Pasko and landed a punch to Mr.

Pasko’s face.      Mr. Pasko collapsed to the ground.            Mr. Thompson

then ran into the bar to get help and an ambulance was called.

Defendant followed Mr. Thompson back to the bar but did not

enter.     Instead, Mr. Williams picked up Defendant in a car and

drove away from the scene.
                                          -3-
      On 16 October 2012, a warrant was issued, and Defendant was

arrested    at   his   residence     by    Officer   Aaron   Jessup     (“Officer

Jessup”).        Officer    Jessup   transported     Defendant    to     the   law

enforcement detention center located at the Forsyth County Jail.

Once at the jail, Defendant was issued a Miranda warning, which

he acknowledged receiving.            Officer Jessup testified at trial

that Defendant stated that he had been approached by a “white

male . . . [who] was aggressive and had words with his friend

[Mr. Williams and] at one point . . . slapped his friend [Mr.

Williams] on the buttocks inside the business where they were

playing pool . . . they had words, and they went outside the

business, and that is where [Defendant] said the altercation

began.”     Officer Jessup also testified that Defendant stated

“that he struck the white male in self-defense.”

      The West End Opera House is equipped with a 15 camera video

surveillance system that records 24 hours a day without audio.

Two   police     officers     reviewed      the   videos     recorded    by    the

surveillance system on the night of the incident along with the

owner and manager of the bar.             The bar owner provided the police

officers with two recorded compact discs that included all the

footage of Defendant on 5 October 2012 from the time he entered

the bar at approximately 1:36 a.m. until the time he drove away
                                           -4-
at approximately 2:30 a.m.                 The State then provided the two

videos to Defendant on 12 December 2012.

       Defendant          requested    additional    discovery       on    15     January

2013, specifically asking for “the video surveillance from the

surveillance         camera . . . focused on the front entrance of the

West    End       Opera    House.”       The    State    responded        that    Officer

Griffith      –    the     police     department’s      case    manager     –    had   “no

knowledge of any video being in the possession of the Winston-

Salem     Police          Department    that     would     have     come        from   any

surveillance camera located at the front of the West End Opera

House.”

       On 26 November 2012, Defendant was indicted by the Forsyth

County grand jury on the charge of assaulting Mr. Pasko and

inflicting “serious bodily injury” causing a skull fracture, eye

socket fracture, and multiple facial fractures.

       On 3 April 2013, Defendant filed a pre-trial motion asking

for “access to the remaining video surveillance not previously

provided by the State,” and “[i]n the event that said video

surveillance [has] been destroyed or is otherwise unavailable,

then an Order should be entered by the Court preventing the

State be barred [sic] from playing its video during a trial of

this    matter.”           Defense    counsel    noted   that     there    had    been   a
                                           -5-
confrontation outside the bar and “words were exchanged just

outside the front door of the Opera House.”                        For this reason,

defense    counsel     explained       she       sought    access       to     any   video

surveillance     recorded      from    a    camera    located      above       the   front

door.     The State responded that any other existing surveillance

videos had never been in the State’s possession and that the two

videos    that   the    State     did       possess       had    been        provided   to

Defendant’s counsel and were going to be introduced as evidence.

The   trial   court    ruled    that       the   State    would    be    permitted      to

introduce the two videos and denied Defendant’s motion.

      A jury trial was held beginning on 8 April 2013. On 9 April

2013, Defendant was found guilty of assault inflicting serious

bodily injury and was sentenced to 25-39 months.                        Defendant gave

notice of appeal in open court.

                                      Analysis

I. Denial of Pre-Trial Discovery Motion

      Defendant argues the trial court abused its discretion in

denying Defendant’s motion seeking access to the remaining video

surveillance not previously provided by the State, alleging the

State was allowed to “introduce incomplete evidence in the form

of partial video recordings which did not record the entire

encounter between Defendant and Mr. Pasko.”                     We disagree.
                                 -6-
    Discovery in criminal superior court cases is governed by

Chapter 15A, Article 48 of the North Carolina General Statutes.

Section 15A-903 specifically governs disclosure of evidence by

the State and provides in pertinent part:

            (a) Upon motion of the defendant, the court
            must order:

               (1) The State to make available to the
            defendant the complete files of all law
            enforcement      agencies,      investigatory
            agencies, and prosecutors’ offices involved
            in the investigation of the crimes committed
            or the prosecution of the defendant.

                 a.   The   term   “file”  includes   the
            defendant’s statements, the codefendants’
            statements,        witness        statements,
            investigating officers’ notes, results of
            tests and examinations, or any other matter
            or    evidence     obtained    during     the
            investigation of the offenses alleged to
            have been committed by the defendant. . . .

            . . . .

                 d. The defendant shall have the right
            to inspect and copy or photograph any
            materials   contained  therein  and,   under
            appropriate safeguards, to inspect, examine,
            and test any physical evidence or sample
            contained therein.

N.C. Gen. Stat. § 15A-903(a)(1)(a),(d) (2013).

    “If a trial court determines that the State has violated

statutory   discovery   provisions   or   a   discovery   order,   it   may

impose a wide array of sanctions including dismissal of the
                                         -7-
charge with or without prejudice.”                    State v. Dorman, ___ N.C.

App. ___, ___, 737 S.E.2d 452, 470 (citing N.C. Gen. Stat. §

15A-910(a)(3b)), appeal dismissed and disc. review denied, ___

N.C. ___, 743 S.E.2d 205 (2013).                  “On appeal, we review the

trial   court’s    decision    to   impose       discovery      sanctions      for   an

abuse of discretion.”       Id.     “The trial court may be reversed for

an   abuse    of   discretion       in        [addressing       alleged   discovery

violations] only upon a showing that its ruling was so arbitrary

that it could not have been the result of a reasoned decision.”

State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987)

(citation omitted).

     Here,    Defendant     sought       an    order     from    the   trial    court

compelling the State to give him access to video surveillance

from all of the video cameras at the bar, particularly the video

from the camera at the front door.                     However, the State only

collected video surveillance from two of the fifteen cameras and

did not collect the video from the front door camera.                          As the

State   was   never    in     possession         of    the   video     surveillance

requested by Defendant, we hold that the trial court did not

abuse its discretion in denying Defendant’s discovery motion.

See State v. Morris, 156 N.C. App. 335, 341, 576 S.E.2d 391,

395, (stating that, under prior version of N.C. Gen. Stat. §
                                            -8-
15A-903, defendant was not entitled to discovery of requested

materials because State never possessed or controlled them or

intended   to   use   them        as    evidence     against    defendant)        cert.

denied, 357 N.C. 510, 588 S.E.2d 379 (2003); cf. State v. Lynn,

157 N.C. App. 217, 221-22, 578 S.E.2d 628, 632 (2003) (holding

in context of Brady analysis that “[t]he State . . . is under a

duty to disclose only those matters in its possession and is not

required   to   conduct      an    independent       investigation        to   locate

evidence favorable to a defendant” (citation and quotation marks

omitted)).

II. Similarity Between Defendant’s Prior Federal Conviction and
    His North Carolina Common Law Robbery Conviction

    Defendant also argues the trial court erred in calculating

his prior record level because it erroneously concluded that his

federal conviction for bank robbery was substantially similar to

North   Carolina’s    offense          of   common   law   robbery.        Defendant

contends the State provided no evidence as to the nature of the

bank robbery and thus did not show that his actions on that

prior   occasion   were   substantially            similar     to   the    acts   that

constitute common law robbery in North Carolina.                          Defendant’s

arguments are misplaced.

    “The prior record level of a felony offender is determined

by calculating the sum of the points assigned to each of the
                                    -9-
offender’s prior convictions . . . .”             N.C. Gen. Stat. § 15A-

1340.14(a) (2013).

            If the State proves by the preponderance of
            the evidence that an offense classified as
            either a misdemeanor or a felony in the
            other jurisdiction is substantially similar
            to an offense in North Carolina that is
            classified as a Class I felony or higher,
            the conviction is treated as that class of
            felony for assigning prior record level
            points.

N.C. Gen. Stat. § 15A-1340.14(e) (2013).

      “[T]he question of whether a conviction under an out-of-

state statute is substantially similar to an offense under North

Carolina statutes is a question of law requiring de novo review

on appeal.”     State v. Fortney, 201 N.C. App. 662, 669, 687

S.E.2d 518, 524 (2010) (citation and internal quotation marks

omitted).     In determining “whether the out-of-state conviction

is substantially similar to a North Carolina offense,” the trial

court must compare “the elements of the out-of-state offense to

those of the North Carolina offense.”           Id. at 671, 687 S.E.2d at

525 (emphasis added and citation omitted).            Because the focus of

the   “substantially   similar”    test    is   on   the   elements   of   the

offenses, and not the facts of the specific crimes, Defendant’s

contention that the State         failed   to provide      evidence of the
                                        -10-
specific factual nature of the prior bank robbery is without

merit.

       Turning to the elements of each offense, we conclude the

trial     court   did    not     err   in    concluding     the     offenses     are

substantially similar.           The elements of common law robbery are

“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, cert. denied, 459 U.S. 1056, 74 L.Ed.2d 622

(1982).      The “violence or          fear” necessary to         accomplish     the

taking for purpose of common law robbery has been repeatedly

held to include intimidation.           See State v. Sipes, 233 N.C. 633,

635, 65 S.E.2d 127, 128 (1951) (defining common law robbery as

“the felonious taking of personal property from the person of

another, or in his presence, without his consent, or against his

will, by violence, intimidation or putting in fear” (emphasis

added)); cf. State v. McDonald, 130 N.C. App. 263, 267, 502

S.E.2d    409,    412   (1998)    (holding     “fear   or   intimidation        is   a

material fact in issue regarding the offense of armed robbery”

(emphasis    added)).       Here,      Defendant     does   not     challenge    the

State’s assertion that he was convicted of the federal offense

of bank robbery pursuant to 18 U.S.C. § 2113(a), which punishes:
                                     -11-
              [w]hoever, by force and violence, or by
              intimidation, takes, or attempts to take,
              from the person or presence of another, or
              obtains or attempts to obtain by extortion
              any property or money or any other thing of
              value belonging to, or in the care, custody,
              control, management, or possession of, any
              bank, credit union, or any savings and loan
              association[.]

Id.

      Thus,    both    offenses   require     the   taking   of   property   by

either   force,       violence,   fear   or    intimidation.       The   major

difference between the two crimes is that the North Carolina

offense applies to all victims, whereas the federal offense is

limited to victims who are banks, credit unions or savings and

loan associations.1       Accordingly, we conclude these offenses are

“substantially similar” to each other for purposes of N.C. Gen.

Stat. § 15A-1340.14(e) and that the trial court did not err in

calculating Defendant’s prior record level.

                                  Conclusion

      For the reasons stated above, we affirm.

      AFFIRMED.

      Judges McGEE and ELMORE concur.

      Report per Rule 30(e).




1
  Defendant does not raise this distinction in support of his
argument on this issue.
