NO. COA13-1080
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Nash County
Nos. 12 CRS 51464
MARKEITH RAYSHOUN MITCHELL, 12 CRS 51466
Defendant.
Appeal by defendant from judgments entered 16 May 2013 by
Judge Marvin K. Blount, III in Nash County Superior Court.
Heard in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Amy Kunstling Irene, for the State.
William B. Gibson for defendant-appellant.
GEER, Judge.
Defendant Markeith Rayshoun Mitchell appeals from his
convictions of felonious breaking or entering a motor vehicle,
first degree trespass, injury to real property, and attempted
larceny. On appeal, defendant primarily contends that the trial
court erred in denying his motion to dismiss the charge of
breaking or entering and in instructing the jury on a charge of
"breaking or entering" when the indictment charged "breaking and
entering." We hold that because of the disjunctive language of
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N.C. Gen. Stat. § 14-56 (2013), the State need not prove both a
breaking and an entering and the instruction was not erroneous.
The State's evidence that defendant opened the car door with
intent to steal the car itself was substantial evidence that
defendant committed a breaking with intent to commit a felony
therein. Because defendant does not challenge the sufficiency
of the State's evidence as to the remaining elements of the
charge, we hold that the trial court did not err in denying the
motion to dismiss.
Facts
The State's evidence tended to show the following facts.
On 26 March 2012, defendant offered Marcus Lucas $50.00 to "help
him get a car." The two men drove in defendant's Jeep Cherokee
to 1021 Russell Street, the property where the vehicle was
located. When they arrived, the fence around the property was
locked. Defendant and Lucas tore the fence down and entered the
property.
Once inside, defendant backed his Jeep up to a shelter in
the backyard where a 1979 Dodge Aspen was parked. Defendant and
Lucas exited the Jeep, and defendant opened the door of the
Dodge. Lucas stood back as defendant retrieved the tire pump
from his Jeep and began pumping up the flat tire on the Dodge.
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Meanwhile, Officer J.K. Richardson of the Rocky Mount
Police Department received a call that a breaking and entering
was in progress on 1021 Russell Street. Officer Richardson
arrived at the scene a short time later and announced his
presence as he approached the garage. Although Lucas
immediately fled, defendant, who was at the rear of the Dodge
pumping the tire, did not see the police arrive. Defendant was
arrested at the scene, while Lucas was arrested later.
After taking defendant into custody, Officer Richardson
returned to the garage. The Jeep was backed up to the garage
approximately five feet from the Dodge, and the trunk and
driver's door of the Jeep were open. Inside the Jeep, Officer
Richardson saw an air compressor and a metal pipe with pieces of
rope on each end, an apparatus that is normally used for towing
vehicles. There was a rope attached to the back of the Jeep
that went toward the Dodge, but was not yet hooked up to the
Dodge.
The driver's side door of the Dodge had been left open.
Officer Richardson concluded that the door had recently been
opened because it was pollen season and the outside of the Dodge
and the garage were both very dusty, but there was no pollen on
the interior of the Dodge or on the tool kits and tarps stored
inside the Dodge.
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The Dodge and the property where it was parked belonged to
Brenda Simmons, who had inherited it from her deceased parents.
Ms. Simmons had never opened the driver's door of the Dodge
after her father passed away. She had visited her property the
evening prior to defendant's arrest while it was still daylight
out and, from her vantage point in the backyard, she had not
noticed the car door of the Dodge being open. Ms. Simmons did
not know defendant or Lucas and did not consent to either of
them coming on her property or taking the Dodge.
On 4 June 2012, defendant was indicted for attempted
larceny, first degree trespass, injury to real property, and
breaking and entering a motor vehicle. At trial, defendant
testified on his own behalf. He claimed that, on the morning of
26 March 2012, he was out driving when he saw Lucas motion for
him to stop. Lucas told defendant that a friend had given him a
car and that he needed someone to help him get the car home. He
offered defendant $50.00 to help, and defendant agreed. Lucas
already had a chain for towing, but they went to defendant's
uncle's house to get a towing bar and an air compressor. When
they arrived at the property where the car was located,
defendant saw that there was a locked fence, but Lucas pulled
the fence over to one side with his hands.
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Once they gained entry onto the property, defendant backed
the Jeep up to the Dodge while Lucas retrieved a chain off the
dog house in the backyard. At that point, the police arrived
and Lucas fled. Defendant did not flee because he did not know
that they were stealing a car. Defendant denied having ever
touched the Dodge, having opened the car door, or having noticed
that the door was ajar.
The jury found defendant guilty of attempted larceny, first
degree trespass, injury to real property, and breaking or
entering a motor vehicle. The trial court sentenced defendant
to 60 days imprisonment on the consolidated charges of attempted
larceny, first degree trespass, and injury to real property.
The trial court also sentenced defendant to six to 17 months
imprisonment for breaking or entering a motor vehicle, but
suspended the sentence and imposed 24 months of supervised
probation. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court erred in
denying his motion to dismiss the charge of felonious breaking
or entering a motor vehicle. "'Upon defendant's motion for
dismissal, the question for the Court is whether there is
substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and
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(2) of defendant's being the perpetrator of such offense. If
so, the motion is properly denied.'" State v. Fritsch, 351 N.C.
373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes,
334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). "This Court
reviews the trial court's denial of a motion to dismiss de
novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33
(2007).
"Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980). We must "consider all evidence admitted,
whether competent or incompetent, in the light most favorable to
the State, giving the State the benefit of every reasonable
inference and resolving any contradictions in its favor." State
v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
Defendant was charged with breaking and entering a motor
vehicle in violation of N.C. Gen. Stat. § 14-56. In order to
obtain a conviction for breaking and entering a motor vehicle,
"the State must prove the following five
elements beyond a reasonable doubt: (1)
there was a breaking or entering by the
defendant; (2) without consent; (3) into a
motor vehicle; (4) containing goods, wares,
freight, or anything of value; and (5) with
the intent to commit any felony or larceny
therein."
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State v. Clark, 208 N.C. App. 388, 390-91, 702 S.E.2d 324, 326
(2010) (quoting State v. Jackson, 162 N.C. App. 695, 698, 592
S.E.2d 575, 577 (2004)). Defendant contends that the State
presented insufficient evidence of the first and fifth elements.
As to the first element, evidence of either a breaking or
an entering satisfies the State's burden of proof. See State v.
Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 579 (1982) (holding,
under identical language in N.C. Gen. Stat. § 14-54(a) (1979),
State "need not show both a breaking and an entering").
This Court has held that
"[b]reaking is defined as any act of force,
however slight, employed to effect an
entrance through any usual or unusual place
of ingress, whether open, partly open, or
closed. A breaking may be actual or
constructive. A defendant has made a
constructive breaking when another person
who is acting in concert with the defendant
actually makes the opening. Acting in
concert means that the defendant is present
at the scene of the crime and acts together
with another who does the acts necessary to
constitute the crime pursuant to a common
plan or purpose to commit the crime."
State v. Baskin, 190 N.C. App. 102, 109, 660 S.E.2d 566, 572
(2008) (quoting State v. Graham, 186 N.C. App. 182, 196-97, 650
S.E.2d 639, 649 (2007)). A breaking may be established by a
"'mere pushing or pulling open of an unlocked door or the
raising or lowering of an unlocked window, or the opening of a
locked door with a key.'" State v. Garcia, 174 N.C. App. 498,
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502, 621 S.E.2d 292, 296 (2005) (quoting State v. Bronson, 10
N.C. App. 638, 640, 179 S.E.2d 823, 825 (1971)).
Where, as here, the trial court instructs the jury on the
acting in concert doctrine, the State's burden as to the element
of breaking can be satisfied by showing either the defendant
personally committed the breaking or that he acted in concert
with someone to commit the breaking. See Baskin, 190 N.C. App.
at 109-10, 660 S.E.2d at 572 (holding that sufficient evidence
of breaking and entering by defendant existed when passenger in
car driven by defendant reached inside victim's car and stole
victim's satchel).
In this case, the evidence viewed in the light most
favorable to the State is sufficient to show that defendant, or,
alternatively, Lucas acting in concert with defendant committed
a breaking by opening the door of the Dodge. Officer Richardson
testified that when he arrived on the scene, defendant was
standing near the Dodge and the Dodge's driver-side door was
open. The State also presented evidence that the door must have
been recently opened because there was no pollen inside although
the outside of the car was covered in pollen and the owner of
the Dodge never opened the doors of the Dodge and its door was
not open the previous afternoon. Moreover, defendant testified
that Lucas opened the car door, while Lucas testified that
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defendant opened the door. From this evidence, a reasonable
juror could infer that defendant opened the car door, or,
alternatively, that Lucas opened the door and was acting in
concert with defendant.
Defendant also argues that there was insufficient evidence
of the fifth element -- that the act was committed "with intent
to commit any felony or larceny therein." N.C. Gen. Stat. § 14-
56. Defendant argues that while the evidence presented by the
State may be sufficient to show that defendant intended to steal
the car itself, it was not sufficient to show intent to steal
the "thing[s] of value" found therein. Id.
Defendant's argument, however, was rejected by this Court
in Clark, 208 N.C. App. at 393, 702 S.E.2d at 327-28. In Clark,
this court held that the intent to steal the motor vehicle
itself may satisfy the intent element under N.C. Gen. Stat. §
14-56. 208 N.C. App. at 393, 702 S.E.2d at 327-28. Defendant
concedes that the State presented sufficient evidence that
defendant, or Lucas acting in concert with defendant, intended
to steal the vehicle itself. Under Clark, such evidence is
sufficient. We, therefore, conclude that the State presented
substantial evidence of each of the elements of the charge of
breaking or entering a motor vehicle. Accordingly, we hold that
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the trial court did not err in denying defendant's motion to
dismiss.
II
Defendant next argues that the trial court committed
reversible error by instructing the jury on a theory of breaking
or entering a motor vehicle when the indictment alleged that
defendant broke and entered the vehicle. "Whether a jury
instruction correctly explains the law is a question of law,
reviewable by this Court de novo." State v. Barron, 202 N.C.
App. 686, 694, 690 S.E.2d 22, 29 (2010). "However, an error in
jury instructions is prejudicial and requires a new trial only
if 'there is a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial out of which the appeal arises.'" State v.
Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009)
(quoting N.C. Gen. Stat. § 15A-1443(a) (2007)).
Defendant's argument has previously been rejected regarding
the offense of breaking or entering a building under N.C. Gen.
Stat. § 14-54 (2013). Under this statute, where an indictment
alleging a violation of N.C. Gen. Stat. § 14-54 charges the
defendant with "breaking and entering," it is not error for the
trial court to instruct on breaking or entering. State v. Boyd,
287 N.C. 131, 145, 214 S.E.2d 14, 22 (1975), superseded by
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statute on other grounds as stated in State v. Silhan, 302 N.C.
223, 239, 275 S.E.2d 450, 464 (1981). As explained in Boyd:
It has long been the law in this State in
prosecutions under [N.C. Gen. Stat. § 14-54]
and its similar predecessors that where the
indictment charges the defendant with
breaking and entering, proof by the State of
either a breaking or an entering is
sufficient; and instructions allowing juries
to convict on the alternative propositions
are proper.
Id. See also State v. Reagan, 35 N.C. App. 140, 143, 240 S.E.2d
805, 808 (1978) (holding no error when the defendant was
indicted for breaking and entering and the trial court's charge
to the jury referenced breaking or entering). The act of
"breaking or entering" is an element of a charge pursuant to
both N.C. Gen. Stat. § 14-54 and N.C. Gen. Stat. § 14-56. We
therefore find that the rule under Boyd is applicable to the
element of "breaking or entering" regardless whether the
defendant "breaks or enters" a motor vehicle under N.C. Gen.
Stat. § 14-56 or a dwelling house under N.C. Gen. Stat. § 14-54.
Accordingly, we hold that the trial court did not err in
instructing the jury on "breaking or entering."
III
Defendant's final argument on appeal pertains to the charge
of first degree trespassing. Defendant argues that the trial
court erred by failing to instruct the jury on defendant's
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affirmative defense that he reasonably believed he had a right
to enter the property. Because defendant did not request the
instruction at trial, we review for plain error.
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice -- that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations and quotation marks omitted).
For a trial court to be required to instruct the jury on an
affirmative defense, the defendant must present substantial
evidence, when viewed in the light most favorable to the
defendant, of each element of the defense. State v. Ferguson,
140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000). Here,
defendant needed to present substantial evidence that (1)
defendant believed he had a right to enter the property and (2)
defendant had reasonable grounds to support this belief. State
v. Baker, 231 N.C. 136, 140, 56 S.E.2d 424, 427 (1949).
Defendant argues that his testimony constitutes substantial
evidence of this affirmative defense. Defendant testified that
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when he met up with Lucas on the morning of 26 March 2012, Lucas
told him that a friend had given him a car, that he needed
someone to help him get the car home, and that he would pay
defendant $50.00 for his assistance in retrieving the car.
Although the property where the car was located was enclosed by
a locked fence, defendant testified that Lucas was easily able
to pull the fence to one side. Under these circumstances,
defendant contends, his belief that they had permission to be on
the property remained reasonable.
However, even assuming, without deciding, that defendant
presented substantial evidence of each element of this defense,
he cannot show that the failure of the trial court to instruct
the jury on this defense had a probable impact on its finding of
guilt. The jury's verdict as to the larceny charges required a
finding that defendant intended to steal the vehicle, or that
Lucas intended to steal the vehicle and defendant acted in
concert with him. In either scenario, such a finding precludes
a finding by the jury that the defendant believed that he had a
legal right to enter the property. Defendant has therefore
failed to show that he was prejudiced by the alleged error.
No Error.
Judges BRYANT and CALABRIA concur.