State v. Young-Kirkpatrick, ___ N.C. App. ___, ___ S.E.2d ___ (Jul. 7, 2020)

The defendant in this Davidson County case was tried for common law robbery, habitual misdemeanor assault, and habitual felon. The charges stemmed from an incident between the defendant and his then-girlfriend at her residence, resulting in him assaulting her, damaging her car, and ultimately taking her car after she fled inside the home. The defendant had recently purchased the car for the woman and had been reimbursed by her family for its value, and this was apparently part of the argument. At trial, evidence was also presented that the defendant provided the victim heroin during their relationship. The defendant was convicted on all counts and appealed.

(1) The defendant argued there was insufficient evidence that he used force to take the car or that he took property from the victim’s presence. The court rejected the arguments, observing that “even when there is some attenuation between the use of force and the taking, the action can still amount to a continuous transaction.” Slip op. at 7. Here, the defendant’s acts of assaulting the victim and stealing her car occurred within a 20-minute time period in the victim’s front yard, and evidence showed that the argument and assault were related to the car. Viewed in the light most favorable to the State, the victim fled in response to the defendant’s assault, and the defendant took her car immediately afterwards. This was sufficient to show a continuous transaction linking the defendant’s use of force to the taking of property. The same facts showed that the taking occurred “in the presence of” the victim. In the words of the court:

If the force . . . for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the property in one continuous course of conduct, the taking is from the “presence” of the victim.” Id. at 8 (citation omitted).

The trial court did not therefore err in denying the motion to dismiss the common law robbery charge for insufficient evidence.

(2) The defendant argued that the testimony about him giving the victim heroin during their relationship was unduly prejudicial and violated N.C. Evid. R. 404(b). Assuming without deciding that the admission of this testimony violated Rule 404(b), any error was harmless in light of “overwhelming evidence” of the defendant’s guilt.

(3) The trial court erred by failing to give the defendant notice and an opportunity to be heard on attorney fees. The record contained no colloquy between the trial judge and the defendant on the issue and no other evidence showed that the defendant was given a chance to be heard. Thus, the civil judgement on attorney fees was vacated and the matter remanded for hearing on that issue only. The convictions were otherwise unanimously affirmed.