In The Matter Of: J.B
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA11-504 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 IN THE MATTER OF: J.B. Durham County No. 09 JB 356 Appeal by juvenile from order entered 10 November 2010 by Judge Marcia H. Morey and from order entered 23 November 2010 by Judge William A. Marsh, III in Durham County District Court. Heard in the Court of Appeals 7 November 2011. Roy Cooper, Attorney General, by Charlene Assistant Attorney General, for the State. Reece & Reece, appellant. by Mary McCullers Reece, Richardson, for juvenile MARTIN, Chief Judge. On 10 November 2010, juvenile J.B. was adjudicated delinquent for having committed the offense of attempted common law robbery. 23 November The matter was continued for disposition. 2010, the juvenile was sentenced disposition and placed in secure custody for to a up to On Level 2 fourteen -2days. The juvenile appeals. The State s evidence at the adjudication hearing tended to show that on or about 4 September 2010, the victim was walking to her house with her friend when J.B. and another boy came up behind them. J.B. asked the victim, [W]here my money? my five dollars at? The victim had previously told J.B. that she would give him five dollars as a gift for his birthday. victim told J.B. she did not have any money. times. to pop the victim with the The J.B. then picked up a stick and would not let the victim pass by. proceeded Where stick J.B. then three or four J.B. s friend then put the victim in a headlock and she fell to the ground. J.B. began checking her pockets while she was on the ground. J.B. and his friend found no money on the victim and let her go. The victim went to her grandmother s house where the victim s grandmother called the police. _________________________ The juvenile s sole contention on appeal is that he was denied effective assistance of counsel by the failure of his trial counsel to make a motion to dismiss at the close of the State s evidence. assistance of To counsel, succeed the on a juvenile claim must of first ineffective show that counsel s performance was deficient, which requires showing that counsel made errors so serious that counsel was not -3functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984). Second, the defendant must show that the deficient performance prejudiced the defense. Id. To satisfy this requirement, a defendant must show that counsel s errors were so serious as to deprive the defendant of a fair trial, a trial whose determination must be result is reliable. Id. This based on the totality of the evidence before the finder of fact. Id. at 695, 80 L. E. 2d at 698. [A] court need not determine whether counsel s performance was deficient before examining the prejudice suffered defendant as a result of the alleged deficiencies. 80 L. E. 2d at 699. by the Id. at 697, In State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985), our Supreme Court recognized, [i]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel s alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel s performance was actually deficient. Specifically, sufficient evidence J.B. of argues each the element State of did attempted not present common law robbery and therefore a different result would have been reached had his counsel made a motion to dismiss. Attempted common law -4robbery consists of (1) defendant s specific intent to commit the crime of common law robbery, and (2) a direct but ineffectual act by defendant leading toward the commission of this crime. 273, 274 State v. Whitaker, 307 N.C. 115, 118, 296 S.E.2d (1982). Common law robbery is defined 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. Herring, 322 N.C. 733, 739, 370 S.E.2d 363, 368 (1988) (quoting 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 force element required for common law robbery requires violence or fear sufficient to compel the victim to part with his property, State v. Williams, 201 N.C. App 161, 183, 689 S.E.2d 412, 424 (2009) (quoting State v. Sipes, 233 N.C. 633, 635, 65 S.E.2d 127, 128 (1951)), or to prevent resistance to the taking. Id. (quoting State v. Sawyer, 224 N.C. 61, 65, 29 S.E.2d 34, 37 (1944)). The act of violence must precede or be concomitant with the taking in order for the robbery to be committed. State v. Porter, 198 N.C. App. 183, 186, 679 S.E.2d 167, 170 (2009). In this case, the victim testified that when she saw the juvenile approach, she attempted to run but could not due to the slippers she was wearing. She testified that the juvenile -5picked up a large stick and then proceeded to check the victim s pockets for money, using an act of violence or fear towards the victim while attempting to take money from her. The victim asked J.B. to stop, told J.B. she had no money, and tried to get around J.B. three or four times. Each time she tried to move around him, J.B. popped the victim on the hand with the stick. J.B. s actions with the stick and its use to restrain the victim while asking her for money constitute an attempted taking of the victim s property by force or violence. Taking the evidence in the light most favorable to the State, there was sufficient evidence presented that the juvenile had the specific intent to deprive the victim of her property and there was a direct act and use of force by the juvenile to overcome resistance to the taking on the part of the victim. Therefore, the juvenile cannot establish that, if a motion to dismiss at the close of evidence had been made, a different result would have occurred. J.B. s claim for ineffective assistance of counsel is meritless and the adjudication of delinquency is affirmed. Affirmed. Judges STROUD and ERVIN concur. Report per Rule 30(e).
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