State v. Campbell

NO. COA13-1404

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Cleveland County
No. 12CRS054927-28
THOMAS CRAIG CAMPBELL,
Defendant.

Appeal by defendant from Judgment entered on or about 12

June 2013 by Judge Linwood O. Foust in Superior Court, Cleveland

County. Heard in the Court of Appeals 7 May 2014.

Attorney General Roy A. Cooper, III, by Assistant Attorney
General Allison A. Angell, for the State.

Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Jason Christopher Yoder, for defendant-
appellant.

STROUD, Judge.

Thomas Campbell (“defendant”) appeals from the judgment

entered after a Cleveland County jury found him guilty of

larceny and breaking or entering a place of religious worship.

We vacate defendant’s larceny conviction and reverse his

conviction for breaking or entering a place of religious

worship. We remand for entry of judgment and resentencing on

misdemeanor breaking or entering.
 -2-
I. Background

On 8 October 2012, defendant was indicted for breaking or

entering a place of religious worship and larceny after breaking

or entering. The larceny indictment alleged that on 15 August

2012 defendant “willfully and feloniously did steal, take, and

carry away a music receiver, microphones, and sounds [sic]

system wires, the personal property of Andy Stephens and Manna

Baptist Church, pursuant to a breaking or entering in violation

of N.C.G.S. 14-54.1(a).” Defendant pled not guilty and

proceeded to jury trial.

At trial, the State’s evidence tended to show that Pastor

Andy Stephens of Manna Baptist Church, located on Burke Road in

Shelby, North Carolina, discovered after Sunday services on 19

August 2012 that a receiver, several microphones, and audio

cords were missing. The cords were usually located at the front

of the church, by the sound system, or in the baptistery

changing area. It appeared that the sound system had been

opened up and items inside had been moved around. Pastor

Stephens found a wallet in the baptistery changing area that

contained a driver’s license belonging to defendant.

Pastor Stephens testified that when the church secretary

arrived on Thursday morning earlier that week, she had noticed
 -3-
that the door was unlocked. She assumed that it had been left

unlocked after Wednesday night services, which had ended around

9 p.m. Although the front door is normally locked at night, on

cross-examination, Pastor Stephens admitted that the church door

had been left unlocked overnight before. Pastor Stephens said

that the secretary did not notice anything amiss on Thursday

morning.

After Pastor Stephens realized that the audio equipment was

missing he called the Cleveland County Sheriff’s Office. Deputy

Jordan Bowen responded to the scene. The deputy examined the

premises but found no signs of forced entry. He recovered

defendant’s wallet from the pastor.

Investigator Jessica Woosley went to speak with defendant

at the Cleveland County Detention Center, where he was being

held on an unrelated breaking or entering charge. When

Investigator Woosley introduced herself, defendant said, “this

can’t possibly be good. What have I done now that I don’t

remember?” Investigator Woosley read defendant his Miranda

rights and defendant invoked his right to counsel. Investigator

Woosley tried to end the interview, but defendant continued

talking.
 -4-
Defendant admitted that he had been to Manna Baptist Church

on the night in question, but stated that he could not remember

what he had done there. He explained that he had mental issues

and blacked out at times. Defendant claimed to be a religious

man who had been “on a spiritual journey.” He said that he

remembered the door to the church being open, but that he did

not remember doing anything wrong.

After speaking with defendant, Investigator Woosley

searched through a pawn shop database for any transactions

involving items matching those missing from the church but did

not find anything. The missing items were never recovered.

At the close of the State’s evidence, defendant moved to

dismiss the charges. The trial court denied the motion.

Defendant then elected to present evidence and testify on his

own behalf. Defendant testified that he was a 51 year old man

with a high school education and one semester of college. He

said that on 15 August 2012, he had been asked to leave the home

he was living in, so he packed his possessions in a duffel bag

and left. He started walking toward a friend’s house but

dropped the bag in a ditch because it was too heavy to carry

long-distance.
 -5-
Around midnight, defendant arrived at his friend’s house,

but his friend’s girlfriend asked him to leave, so he did.

Defendant continued walking down the road until he came upon the

church. He noticed that the door was cracked slightly and a

“sliver of light” was emanating from within. Defendant

explained that after all his walking, he was thirsty and tired,

so he went into the church looking for water and sanctuary. He

said that while he was inside, he got some water, prayed, and

slept. He claimed that he did not intend to take anything and

did not take anything when he left around daybreak.

After leaving the church, defendant began walking down the

road again. He soon began having chest pains and called 911.

Defendant explained that he was on a variety of medications at

the time, including powerful psychotropic medication. An

ambulance arrived and took him to Cleveland Memorial Hospital.

Calvin Cobb, the Emergency Medical Technician (EMT) who

responded to defendant’s call, also testified on defendant’s

behalf. Mr. Cobb said that they received a dispatch call around

6:30 a.m. When they arrived at the intersection of Burke Road

and River Hill Road, they saw defendant near an open field,

sitting on the back of a fire truck that had been first to

respond. Defendant told Mr. Cobb that he had been wandering all
 -6-
night. Mr. Cobb noticed that defendant looked disheveled and

worn out, and that defendant had worn through the soles of his

shoes. Mr. Cobb did not see defendant carrying anything and did

not find anything in his pockets.

After defendant rested his case, the State called another

officer in rebuttal. The State wanted to offer his testimony

regarding defendant’s prior breaking or entering arrest. The

trial court asked the State to explain the relevance of the

prior incident. The State argued that it contradicted part of

defendant’s testimony regarding what happened before he got to

the church, but did not elaborate on how it contradicted

defendant’s testimony and did not otherwise explain its

relevance. The trial court excluded the rebuttal testimony under

Rule 403. At the close of all the evidence, defendant renewed

his motion to dismiss all charges, which the trial court again

denied.

The jury found defendant guilty of both charges. The trial

court consolidated the charges for judgment and sentenced

defendant to a split sentence of 13-25 months imprisonment,

suspended for 24 months of supervised probation, and an active

term of 140 days in jail. Defendant gave timely written notice

of appeal.
 -7-
II. Larceny Indictment

Defendant first argues that the larceny indictment on which

he was tried was fatally defective because it “failed to allege

that Manna Baptist Church was an entity capable of owning

property.” We agree.

“It is well settled that a valid bill of indictment is

essential to the jurisdiction of the trial court to try an

accused for a felony.” State v. Abraham, 338 N.C. 315, 339, 451

S.E.2d 131, 143 (1994) (citation and quotation marks omitted).

“A challenge to the facial validity of an indictment may be

brought at any time, and need not be raised at trial for

preservation on appeal.” State v. LePage, 204 N.C. App. 37, 49,

693 S.E.2d 157, 165 (2010).

“An indictment must allege all of the essential elements of

the crime sought to be charged.” State v. Ledwell, 171 N.C. App.

328, 331, 614 S.E.2d 412, 414 (citation and quotation marks

omitted), disc. rev. denied, 360 N.C. 73, 622 S.E.2d 624 (2005).

“The essential elements of larceny are that the defendant (1)

took the property of another; (2) carried it away; (3) without

the owner’s consent; and (4) with the intent to permanently

deprive the owner of the property.” State v. Justice, ___ N.C.

App. ___, ___, 723 S.E.2d 798, 801 (2012) (citation, quotation
 -8-
marks, and brackets omitted). “[A]n indictment for larceny which

fails to allege the ownership of the property either in a

natural person or a legal entity capable of owning property is

defective.” State v. Abbott, ___ N.C. App. ___, ___, 720 S.E.2d

437, 440 (2011) (citation and quotation marks omitted).

Here, the indictment alleged two owners of the stolen

property—Andy Stephens and Manna Baptist Church. Andy Stephens

is a natural person, but the indictment does not allege that

Manna Baptist Church is a legal entity capable of owning

property. Failure to include such an allegation is normally

fatal to the indictment. See State v. Cathey, 162 N.C. App. 350,

353, 590 S.E.2d 408, 410 (2004). The inclusion of Pastor

Stephens as co-owner does not cure the omission here.

Where an indictment alleges two owners of the stolen

property, the State must prove that each owner had at least some

property interest in it. See State v. Greene, 289 N.C. 578, 585,

223 S.E.2d 365, 370 (1976) (“If the person alleged in the

indictment to have a property interest in the stolen property is

not the owner or special owner of it, there is a fatal variance

entitling defendant to a nonsuit.”); State v. Burgess, 74 N.C.

272, 273 (1876) (“If one is charged with stealing the property

of A, it will not do to prove that he stole the joint property
 -9-
of A and B.”); State v. Hill, 79 N.C. 656, 659 (1878) (holding

that where an indictment alleges multiple owners, the State must

prove that there were in fact multiple owners). If one of the

owners were incapable of owning property, the State necessarily

would be unable to prove that both alleged owners had a property

interest. Therefore, where the indictment alleges multiple

owners, one of whom is not a natural person, failure to allege

that such an owner has the ability to own property is fatal to

the indictment. Consequently, the indictment here is fatally

flawed and defendant’s conviction for larceny must be vacated.

See Abbott, ___ N.C. App. at ___, 720 S.E.2d at 441.

III. Breaking or Entering a Place of Worship

Defendant next argues that the trial court erred in denying

his motion to dismiss the charge of felony breaking or entering

a place of worship because there was insufficient evidence of

his intent to commit larceny therein. We agree.

When ruling on a motion to dismiss for
insufficient evidence, the trial court must
consider the evidence in the light most
favorable to the State, drawing all
reasonable inferences in the State’s favor.
Any contradictions or conflicts in the
evidence are resolved in favor of the State,
and evidence unfavorable to the State is not
considered. The trial court must decide only
whether there is substantial evidence of
each essential element of the offense
charged and of the defendant[’s] being the
 -10-
perpetrator of the offense. Substantial
evidence is relevant evidence that a
reasonable mind might accept as adequate to
support a conclusion. When the evidence
raises no more than a suspicion of guilt, a
motion to dismiss should be granted.
However, so long as the evidence supports a
reasonable inference of the defendant’s
guilt, a motion to dismiss is properly
denied even though the evidence also permits
a reasonable inference of the defendant’s
innocence.

State v. Chillo, 208 N.C. App. 541, 545, 705 S.E.2d 394, 397

(2010) (citation and quotation marks omitted).

A person commits the felony of breaking or entering a place

of worship if he “[1] wrongfully breaks or enters [2] any

building that is a place of religious worship [3] with intent to

commit any felony or larceny therein.” N.C. Gen. Stat. § 14-

54.1(a) (2011). There are two lesser-included offenses to this

charge: felony breaking or entering under N.C. Gen. Stat. § 14-

54(a) (2011), which lacks the “place of religious worship”

element, and misdemeanor breaking or entering under N.C. Gen.

Stat. § 14-54(b) (2011), which lacks both the “place of

religious worship” element and the intent element.

Defendant does not contend that the State failed to present

sufficient evidence that he wrongfully entered a place of

religious worship. He argues that the State failed to present

sufficient evidence of intent to commit a larceny therein.
 -11-
“Intent is a mental attitude seldom provable by direct

evidence. It must ordinarily be proved by circumstances from

which it may be inferred.” Chillo, 208 N.C. App. at 546, 705

S.E.2d at 398. “The intent with which an accused broke and

entered may be found by the jury from evidence as to what he did

within the [building].” State v. Brewer, 80 N.C. App. 195, 199,

341 S.E.2d 354, 357 (1986) (citation and quotation marks

omitted). “For example, the intent to commit larceny may be

inferred from the fact that defendant committed larceny.”

Chillo, 208 N.C. App. at 546, 705 S.E.2d at 398 (citation and

quotation marks omitted). “Further, a defendant’s possession of

stolen goods soon after the theft is a circumstance tending to

show him guilty of the larceny.” State v. Baskin, 190 N.C. App.

102, 109, 660 S.E.2d 566, 572 (citation, quotation marks, and

brackets omitted), disc. rev. denied, 362 N.C. 475, 666 S.E.2d

648 (2008). Finally, “[i]n the absence of a showing of a lawful

motive, an intent to commit larceny may be reasonably inferred

from an unlawful entry.” State v. Quilliams, 55 N.C. App. 349,

351, 285 S.E.2d 617, 619, cert. denied, 305 N.C. 590, 292 S.E.2d

11 (1982); see State v. McBryde, 97 N.C. 393, 397, 1 S.E. 925,

927 (1887) (establishing that an inference of felonious intent

may be made where a defendant breaks into a dwelling at night
 -12-
with “no explanatory facts or circumstances”). However, this

inference may be precluded by evidence of facts or circumstances

that reveal an innocent reason for the defendant’s entering into

the building.1

The presumption, or inference as it is more
properly called, is one of fact and not of
law. The inference derived from [an unlawful
entry] is to be considered by the jury
merely as an evidential fact, along with the
other evidence in the case, in determining
whether the State has carried the burden of
satisfying the jury beyond a reasonable
doubt of the defendant’s guilt. Proof of
[unlawful entry] by the State does not shift
the burden of proof to the defendant but the
burden remains with the State to demonstrate
defendant’s guilt beyond a reasonable doubt.

1
See, e.g., State v. Cook, 242 N.C. 700, 703, 89 S.E.2d 383, 385
(1955) (evidence sufficient to preclude inference where the
defendant did not flee when discovered, explained that he was
looking for a particular person, and left when requested), State
v. Moore, 62 N.C. App. 431, 434, 303 S.E.2d 230, 232 (1983)
(holding that there was sufficient evidence of innocent intent
where both the State’s and defendant’s evidence showed that the
defendant was coerced at knifepoint to enter), State v.
Humphries, 82 N.C. App. 749, 751, 348 S.E.2d 167, 169 (1986)
(holding that the evidence was sufficient to preclude inference
where defendant believed house to be that of his girlfriend and
nothing in the dwelling had been disturbed), disc. rev.
dismissed, 320 N.C. 165, 357 S.E.2d 359 (1987), State v. Lamson,
75 N.C. App. 132, 133, 135, 330 S.E.2d 68, 68, 70 (holding that
the evidence was sufficient to preclude inference where he tried
to enter the house drunk and was staying at the neighboring
house), disc. rev. denied, 314 N.C. 545, 335 S.E.2d 318 (1985);
see also, State v. Keitt, 153 N.C. App. 671, 675-76, 571 S.E.2d
35, 37-38 (2002) (discussing the rebuttable McBryde inference
and holding that evidence of intoxication alone is insufficient
to rebut it), aff’d per curiam, 357 N.C. 155, 579 S.E.2d 250
(2003).
 -13-

State v. Fair, 291 N.C. 171, 173, 229 S.E.2d 189, 191 (1976)

(citations omitted).

Here, defendant admitted entering the church, but he

explained that he entered to seek sanctuary, drink water, and

pray. Defendant testified that the door to the church was

unlocked when he arrived there. He stated that he saw that the

door was slightly ajar and that a “sliver of light” was coming

from within. He testified that he did not enter intending to

steal anything and did not in fact steal anything. None of the

State’s evidence contradicts this testimony. Pastor Stephens

testified that when the church secretary arrived on the morning

of 20 August 2012, she found the front door unlocked. There

were no signs of forced entry. Pastor Stephens admitted that

the door could have been left unlocked accidentally after

Wednesday night services, which ended around 9 p.m.

Defendant testified that he arrived at the church after 12

a.m. and set back out on the road around sunrise, but that

shortly thereafter he began having chest pains and called 911.

Mr. Cobb, the EMT who responded to defendant’s call, testified

that he was dispatched around 6:30 a.m. At the time, defendant

was near an open field at the intersection of Burke Road and

River Hill Road. The church is also located on Burke Road,
 -14-
though its distance from the intersection is not clear from the

testimony. When Mr. Cobb arrived, defendant was sitting on the

back of a fire truck, which had responded first. Defendant

looked disheveled and worn out. He had worn through the soles of

his shoes. Defendant explained to Mr. Cobb that he had been

wandering all night. Mr. Cobb testified that defendant was not

carrying anything and did not have anything in his pockets.

Four days later, after Sunday services, Pastor Stephens

noticed that an audio receiver, some microphones, and some audio

cords were missing. These items were kept at various places

around the church, including by the sound system, in the front

of the church, and in the baptistery changing area, where

defendant’s wallet was found. Investigator Woosley checked a

pawn shop database, but found no reports of items matching those

missing from the church. Neither the officers nor any of the

church staff searched the area around the church for the missing

items. The items were never recovered.

When Investigator Woosley spoke with defendant at the

Cleveland County Detention Center, defendant admitted that he

had been to the church, but stated that he could not remember

what he had done there. Defendant explained that he was a

religious man and that “he had been on a spiritual [journey].”
 -15-
He admitted having periodic blackouts related to his mental

health issues and medications, but never admitted taking

anything from the church or entering the church with intent to

steal.2 He said that he remembered going to the church and that

the church door was open when he got there, but that he did not

remember doing anything wrong once inside.

We conclude that these facts are sufficient “explanatory

facts and circumstances” to preclude the McBryde inference. See

McBryde, 97 N.C. at 397, 1 S.E. at 927; Lamson, 75 N.C. App. at

135, 330 S.E.2d at 70. Unlike in the cases finding the evidence

sufficient to infer intent from the breaking or entering alone,

there was evidence of innocent intent and no evidence that

defendant was discovered in the church and fled from the

building. Cf. State v. Hill, 38 N.C. App. 75, 78, 247 S.E.2d

295, 297 (1978). Instead, he called 911 from a location near

the church. There was no evidence that defendant attacked

occupants of the building. Cf. State v. Accor, 277 N.C. 65, 73,

175 S.E.2d 583, 588-89 (1970). There was no evidence that

2
Defendant did admit that he had previously broken into a
residence, but there was no evidence that this offense had
anything to do with the church, that it was in the same
vicinity, or that it was uniquely similar to the facts here.
Indeed, when the State attempted to elaborate on this other
offense in rebuttal, the trial court excluded this evidence
under Rule 403.
 -16-
defendant entered the building in a manner consistent with

criminal intent—he entered through an unlocked front door. Cf.

State v. Hedrick, 289 N.C. 232, 236, 221 S.E.2d 350, 353 (1976)

(applying the McBryde presumption where the defendant pushed in

a windowpane to retrieve a key, cut telephone wires, was

familiar with the layout of the house, and fled when

confronted); Quilliams, 55 N.C. App. at 351, 285 S.E.2d at 619

(concluding that there was sufficient evidence to survive a

motion to dismiss where the defendant broke through a window,

cut through a screen, and fled when discovered).

“Inference may not be based on inference. Every inference

must stand upon some clear and direct evidence, and not upon

some other inference or presumption.” Fair, 291 N.C. at 173-74,

229 S.E.2d at 190 (citation and quotation marks omitted). Here,

there was no evidence to contradict the innocent “facts and

circumstances” offered by defendant. Therefore, the State was

not entitled to rely on the McBryde inference to meet its

burden.

Absent such an inference, we conclude that the evidence was

insufficient, even taken in the light most favorable to the

State, to show that defendant entered the church with intent to

commit larceny. Brewer, 80 N.C. App. at 199, 341 S.E.2d at 357.
 -17-
The church was unlocked for over three hours before defendant

arrived. There was no evidence of forced entry. Several hours

later, when Mr. Cobb encountered defendant on the same road as

the church, defendant was not carrying anything. None of the

church staff noticed that the items were missing until four days

later, after Sunday services. There was no evidence that

defendant tried to sell the items in local pawn shops. There was

no evidence that defendant touched the audio system. In fact,

the State presented no evidence that showed defendant ever

possessed the missing items. Cf. Chillo, 208 N.C. App. at 546,

705 S.E.2d at 398; Baskin, 190 N.C. App. at 109, 660 S.E.2d at

572.

We hold that the State failed to meet its burden as to the

intent element of felonious breaking or entering a place of

worship. The evidence is insufficient to support a reasonable

inference that defendant entered the church with intent to

commit larceny. Taken in the light most favorable to the State,

the evidence here “raises no more than a suspicion of guilt.”

Chillo, 208 N.C. App. at 545, 705 S.E.2d at 397. Therefore, the

trial court erred in denying defendant’s motion to dismiss at

the close of all the evidence. See id.
 -18-
Although there was insufficient evidence to sustain a

conviction for felonious breaking or entering, as defendant

concedes, there was ample evidence to support a conviction for

misdemeanor breaking or entering. Therefore, we remand for entry

of judgment on that offense and resentencing. See State v.

Dawkins, 305 N.C. 289, 291, 287 S.E.2d 885, 887 (1982)

(remanding for entry of judgment on misdemeanor breaking or

entering where evidence was sufficient to support that offense,

but not felonious intent).

IV. Ineffective Assistance of Counsel

Defendant next argues that he received ineffective

assistance of counsel because his trial counsel failed to move

in limine to exclude evidence that he had been arrested on an

unrelated breaking or entering charge and initially failed to

object to introduction of that evidence at trial. When his trial

counsel did object to the State’s attempt to call a witness in

rebuttal to testify regarding the other charge, the trial court

sustained the objection under Rule 403.

To prevail in a claim for [ineffective
assistance of counsel], a defendant must
show that his (1) counsel’s performance was
deficient, meaning it fell below an
objective standard of reasonableness, and
(2) the deficient performance prejudiced the
defense, meaning counsel’s errors were so
serious as to deprive the defendant of a
 -19-
fair trial, a trial whose result is
reliable.

State v. Smith, ___ N.C. App. ___, ___, 749 S.E.2d 507, 509

(2013) (citation and quotation marks omitted).

The relevance of the objected-to evidence here relates—at

very best—to the defendant’s intent to commit larceny upon

entering the church. Given our disposition of the breaking or

entering charge, defendant cannot show prejudice from any

failure of his trial counsel to object to this evidence.

Therefore, he is not entitled to a new trial.

V. Conclusion

For the foregoing reasons, we conclude that the trial court

was without jurisdiction to try defendant on the larceny charge

and that it erred in denying defendant’s motion to dismiss the

felony breaking or entering charge. Because there was sufficient

evidence to sustain a conviction for misdemeanor breaking or

entering, we remand for entry of judgment and resentencing on

that offense.

VACATED, in part; REVERSED, in part; and REMANDED.

Judges STEPHENS and MCCULLOUGH concur.