Volume 198 — North Carolina Court of Appeals Reports

<bold>1. Robbery — common law robbery — motion to</bold> <bold>dismiss — sufficiency of evidence — continuous</bold> <bold>transaction</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of common law robbery based on alleged insufficient evidence because: (1) defendant's use of violence was concomitant with and inseparable from the theft of the property from a store when defendant exited the store carrying a large box of shoes and had a shirt concealed in his pants; the store manager confronted defendant in the parking lot and attempted to retrieve the stolen property; and defendant struck the store manager with his fist, causing him to fall to the ground unconscious; (2) our Court of Appeals has uniformly held in armed robbery<page_number>Page 184</page_number> cases that there is sufficient evidence to support a jury finding of a continuous transaction where the defendant exits a store with stolen merchandise and, while in the store parking lot, uses or threatens to use a dangerous weapon on store personnel to facilitate his escape from the premises; (3) the only distinction between the instant case and armed robbery cases is that defendant used his fist rather than a dangerous weapon in the commission of the robbery; (4) the fact that defendant set the box of shoes down when confronted by the store manager does not mean that the theft was complete and the assault was a separate act, nor does the fact that defendant abandoned the shoes after assaulting the store manager change this result; and (5) regardless of what occurred with the shoes, defendant absconded with a shirt after assaulting the store manager, and without the assault, defendant would have been apprehended in the parking lot and not at a cafeteria.</block_quote> <bold>2. Robbery — common law robbery — failure to</bold> <bold>submit lesser-included offense of misdemeanor larceny</bold> <block_quote> The trial court did not err by denying defendant's request for misdemeanor larceny to be submitted as a lesser-included offense of common law robbery because: (1) although defendant contends it was constitutional error and subjected to review under N.C.G.S. § <cross_reference>15A-1443</cross_reference>(b), defendant made no constitutional argument at trial and thus cannot assert this argument on appeal; (2) the only conflict in the State's evidence concerning the element of violence or intimidation was whether defendant struck the store manager or pushed him as defendant stated to the police; (3) given that the State's evidence was uncontroverted that the assault knocked the store manager unconscious, whether it was a blow with the fist or a push was immaterial, and the element of violence was uncontroverted; and (4) the parking lot cases dealing with continuous transactions in the context of armed robbery have consistently refused to segment defendant's conduct into the two separate crimes of misdemeanor assault and misdemeanor larceny.</block_quote>

<bold>1. Trials — mistrial — exclusion of prior</bold> <bold>arrest evidence — new trial unaffected by rulings in</bold> <bold>original trial</bold> <block_quote> The trial court did not commit plain error or err in a possession with intent to sell or deliver cocaine case by allowing a detective to testify about defendant's 2005 arrest under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) because: (1) although defendant contends the trial judge in the 2007 trial excluded the Rule 404(b) evidence and thus the trial judge in the 2008 trial was bound by that ruling, there can be no prior binding evidentiary rulings when defendant is tried again following a mistrial; and (2) neither the doctrine of collateral estoppel nor the one judge overruling another rule applied after the 2007 trial court declared a mistrial.</block_quote> <bold>2. Trials — mistrial — failure to order</bold> <bold>complete recordation — new trial unaffected by rulings in</bold> <bold>original trial</bold> <block_quote> The trial court did not commit plain error or err in a possession with intent to sell or deliver cocaine case by failing to order complete recordation of the 2008 trial even though defendant was granted this motion in the 2007 trial because a new trial is unaffected by rulings made during the original trial when a mistrial is declared and a new trial is ordered.</block_quote><page_number>Page 372</page_number> <bold>3. Costs — trial transcripts — indigent</bold> <bold>defendant</bold> <block_quote> The trial court did not err as a matter of law in a possession with intent to sell or deliver cocaine case by ordering as a condition of post-release supervision that an indigent defendant was required to reimburse the State for its costs incurred in providing him with a transcript of the 2007 trial and any future transcripts because: (1) N.C.G.S. § <cross_reference>7A-455</cross_reference>(b) provides that fees may be collected for the money value of services rendered by assigned counsel, the public defender, or the appellate defender, plus any sums allowed for other necessary expenses of representing the indigent person; and (2) N.C.G.S. § <cross_reference>7A-304</cross_reference> provides that the cost of necessary trial transcripts are included in costs that may be collected from a defendant who is convicted.</block_quote>