State v. Adams

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.

NO. COA13-1202
NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Johnston County
No. 12CRS50894
KIMBERLY DALE ADAMS

Appeal by defendant from judgment entered 11 December 2012

by Judge Thomas H. Lock in Johnston County Superior Court.

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Torrey D. Dixon, for the State.

Amanda S. Zimmer for defendant-appellant.

HUNTER, Robert C., Judge.

Kimberly Dale Adams (“defendant”) appeals from judgment

entered after a jury convicted her for one count of felony

breaking and entering and one count of felony larceny. On

appeal, defendant argues that the trial court: (1) erred by

admitting irrelevant photographs into evidence; (2) erred by

denying defendant’s motion to dismiss because there was

insufficient evidence to establish all elements of breaking and
 2

entering; and (3) committed plain error by not instructing the

jury on abandonment as a defense to larceny. Defendant also

argues that her trial counsel was ineffective for failing to

request an instruction on abandonment as a defense to larceny.

After careful review, we find no error.

Background

The evidence presented at trial tended to establish the

following facts: defendant and a male companion arrived at the

residential home at 185 Winterberry Street in Clayton, North

Carolina on 9 February 2012. A neighbor, Michael Coats (“Mr.

Coats”), testified that from his own home across the street he

saw defendant and the man back into the driveway, open the hatch

of their vehicle, and enter the home through the side door of

the garage. Mr. Coats approached the house and heard either

defendant or her companion opening boxes inside. He then

confronted them. Defendant told Mr. Coats that they were

working with a realtor, that the house was in foreclosure, and

they were considering buying it. Mr. Coats then left the house

and called 911. After Mr. Coats left the house, he saw

defendant put a crate in the back of the vehicle before driving

away.

Two officers responded to the 911 call. Officer Clay Coats

(“Officer Coats”) found the door to the garage open but in a

locked position with signs of possible tampering around the
 3

door. Officer Coats testified that he observed a number of

personal belongings in the house. Another officer, Detective

Brad Gillis (“Detective Gillis”), testified that he observed

slight pry marks on every outside door, each of which was

locked. Photographs of pry marks on the front and back doors

were admitted for illustrative purposes during the testimony of

Detective Gillis, over objection by defense counsel that they

were irrelevant.

Defendant was pulled over by Officer Isaiah Ruffin

(“Officer Ruffin”), who had responded to the description of the

vehicle called in by Mr. Coats. Sergeant Robert Raetz, another

officer on the scene, testified that he seized a tote containing

“various items” that was in plain view. The police report

valued these items at one dollar, but in subsequent arrest

warrant they were valued at one hundred dollars. Other officers

arrived and located a screwdriver and laptop in the vehicle.

Defendant was then arrested and charged with felony breaking and

entering and larceny of toys and a container.

At trial, Helen Lambeth (“Ms. Lambeth”) testified for the

State. She and her husband owned the residence at 185

Winterberry Street, but were in default on their mortgage with

Wells Fargo; they received a pre-foreclosure notice from Wells

Fargo in June 2011. They moved out in May 2011, bringing most

of their personal property with them and had not returned to
 4

reclaim the property left behind. When they moved out of the

house, all of the doors were closed and locked with no damage.

Her family left property in the house because they could not fit

all of their belongings into the small moving vehicle they had

rented and could only use for a limited time. However, Ms.

Lambeth testified that they planned to return and retrieve the

property left behind. Ms. Lambeth further testified that she

did not consent to defendant being present or taking the toys

and container from the house.

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

dismiss the charges in part because it was unclear who actually

owned the house at the time of the alleged breaking and

entering. At the close of all evidence, defendant renewed the

motion to dismiss. Both motions were denied. The judge

instructed the jury that the photographs showing pry marks on

the doors were admitted for illustrative purposes only.

The jury found defendant guilty of felony breaking and

entering and felony larceny. Defendant received a consolidated

sentence of eight to nineteen months imprisonment that was

suspended for thirty-six months of supervised probation.

Defendant later entered an untimely pro se notice of appeal.

Defendant filed a petition for writ of certiorari on 12 December

2013.

Writ of Certiorari
 5

Defendant concedes that she filed untimely notice of appeal

in contravention of Rule 4 of the North Carolina Rules of

Appellate Procedure. See N.C. R. App. P. 4 (2013). It is well-

established that without proper notice of appeal, this Court

does not acquire jurisdiction to review the appeal. State v.

McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320, appeal

dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005). However,

defendant filed a petition for writ of certiorari in this case

seeking a belated appeal. This Court has previously allowed a

petition for writ of certiorari where a pro se defendant failed

to comply with the requirements of Rule 4. See State v.

Crawford, __ N.C. App. __, __, 737 S.E.2d 768, 769 (2013)

(granting the defendant’s petition writ of certiorari even

though she failed to serve her pro se notice of appeal on the

State).

Based on the foregoing, we allow defendant’s petition for

writ of certiorari and will consider the merits of her appeal.

Discussion

I. Photographic Evidence of Pry Marks

Defendant first argues that the trial court erred when it

admitted irrelevant photographs showing damage to the front and

back doors of the house. We disagree.

“Even though a trial court’s rulings on relevancy

technically are not discretionary and therefore are not reviewed
 6

under the abuse of discretion standard applicable to Rule 403,

such rulings are given great deference on appeal.” State v.

Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991).

Rule 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” N.C. Gen.

Stat. § 8C-1, Rule 401 (2013). Only relevant evidence is

admissible. N.C. Gen. Stat. § 8C-1, Rule 402 (2013). If the

evidence has no tendency to prove a fact at issue in the case,

the evidence is irrelevant and must be excluded. State v.

Perry, 298 N.C. 502, 510, 259 S.E.2d 496, 501 (1979). There

must be a “reasonable, or open and visible connection, rather

than one which is remote, latent, or conjectural, between the

evidence presented and the fact to be proved by it.” State v.

Bates, 309 N.C. 528, 536, 308 S.E.2d 258, 263-64 (1983)

(alterations in original).

The elements of the crime of breaking or entering are (1)

the breaking or entering (2) of a building (3) without the

consent of the owner or occupant (4) with the intent to commit

any felony or larceny therein. State v. Boone, 297 N.C. 652,

657, 256 S.E.2d 683, 686 (1979); N.C. Gen. Stat. § 14-54 (2013).

In order for an entry to be unlawful, for the purpose of

felonious breaking and entering, the entry must be without the
 7

owner’s consent. State v. Rawlinson, 198 N.C. App. 600, 607,

679 S.E.2d 878, 882 (2009).

Defendant argues that the photographs showing damage to the

front and back doors of the house were irrelevant because it was

established at trial that defendant entered the house through

the garage door. No pictures of the garage door were shown to

the jury. Thus, defendant contends that the photographs of the

front and back doors had no “reasonable, or open and visible”

connection to any facts at issue in the case. We disagree.

The photographs were admitted for illustrative purposes to

explain testimony from Detective Gillis that there were signs of

possible tampering on the doors consistent with forced entry.

Where a proper foundation has been laid, photographs may be used

to illustrate a witness’s testimony and facilitate his

explanation. State v. Swift, 290 N.C. 383, 395, 226 S.E.2d 652,

662 (1976). Here, the photographs explained and illustrated the

degree to which the pry marks were present on the front and back

doors as Detective Gillis testified. Defendant does not contest

that Detective Gillis’s testimony was relevant. Indeed, this

testimony was relevant, because evidence of pry marks on the

doors had a tendency to make it more likely that defendant

entered the building without the owner’s consent and may have

entered the garage door because she had tried to get in through

other doors, but found them to be locked and impenetrable.
 8

Because entering a building without the consent of the owner

constitutes an element of the crime charged, the circumstances

surrounding defendant’s entry into the home are material facts,

and Detective Gillis’s testimony made nonconsensual entry more

likely than it would be without the evidence. Thus, because the

photographs were only admitted to illustrate this relevant

testimony, we conclude that the trial court did not err by

admitting them for that purpose.

II. Felonious Intent & Consent to Entry

Defendant next argues that the trial court erred by failing

to dismiss the charge of breaking and entering because the State

failed to establish: (1) she had the requisite intent to commit

a felony or larceny at the time of entry; and (2) she did not

have consent to enter the house. We disagree.

We review the trial court’s denial of a motion to dismiss

de novo on appeal. State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007). Under the de novo standard of review, the

reviewing court considers the matter anew and freely substitutes

its own judgment for the lower court’s. Sutton v. N.C. Dep’t of

Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999).

When a trial court rules on a motion to dismiss, it must

determine whether the State presented substantial evidence of

each essential element of that offense. State v. Davis, 74 N.C.

App. 208, 212, 328 S.E.2d 11, 14 (1985). “Substantial evidence
 9

is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” State v. Smith, 300 N.C. 71,

78, 265 S.E.2d 164, 169 (1980). “In making its determination,

the trial court 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), cert.

denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

The element of intent to commit a felony or larceny must

exist at the time of the breaking or entering in order to

convict a defendant on that charge. State v. Freeman, 307 N.C.

445, 450-51, 298 S.E.2d 376, 379-80 (1983). If intent does not

exist at the time of breaking or entering, a defendant would be

guilty of a misdemeanor rather than a felony. N.C. Gen. Stat. §

14-54(b) (2013). Intent is usually inferred from the

circumstances. State v. Bell, 285 N.C. 746, 750, 208 S.E.2d

506, 508 (1974). Our appellate courts have based such

inferences on several factors, including the taking of another’s

property under conditions rendering it unlikely an owner will

ever recover the property, the manner in which the property was

taken, and the fact that the taker held the property in her

possession until it was recovered by the police. See State v.

Smith, 268 N.C. 167, 173, 150 S.E.2d 194, 200 (1966); State v.
 10

Sakobie, 157 N.C. App. 275, 284, 579 S.E.2d 125, 131 (2003).

However, evidence that an item was taken is not “positive proof”

that defendant intended to commit a larceny at the moment he

entered the building. State v. Peacock, 313 N.C. 554, 559, 330

S.E.2d 506, 508 (1985).

Defendant first argues that since she entered the house

during the daytime and explained that her motive was to inspect

the house before possibly buying it, the State failed to prove

that she intended to commit a felony or larceny therein.

Defendant contrasts the facts of this case to State v.

Alexander, 18 N.C. App. 460, 197 S.E.2d 272 (1973), where this

Court noted that “in the absence of evidence of other intent or

explanation for breaking and entering, is that the usual object

or purpose of burglarizing a dwelling house at night is theft.”

Alexander, 18 N.C. App. at 462-463, 197 S.E.2d at 273-274.

We find, however, that the State presented sufficient

evidence for a jury to reasonably conclude that defendant

intended to commit a larceny when she entered the house. “The

criminal intent of the defendant at the time of breaking or

entering may be inferred from the acts he committed subsequent

to his breaking or entering the building.” State v. Williams,

330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992). The State

produced the following evidence tending to show that defendant

had the intent to commit larceny before entering the house: (1)
 11

defendant and the man accompanying her pulled into the driveway

of the house in reverse and opened the hatchback before

entering, indicating that they planned to take something from

the house and put it into their vehicle; (2) Mr. Coats heard one

of the two rummaging through boxes when he approached the house;

and (3) defendant was pulled over with items taken from the

house in her car shortly after she left. We hold that this

evidence was such that a reasonable mind could accept as

adequate to support the conclusion that the requisite intent to

commit a larceny existed at the time of entry, and thus there

was substantial evidence of this element sufficient to survive a

motion to dismiss. See State v. Thompkins, 83 N.C. App. 42, 44,

348 S.E.2d 605, 606 (1986) (evidence that defendant was seen

walking from the house with large objects and that those objects

were missing from the house was substantial evidence of the

element of intent to commit a larceny at the time of a breaking

or entering); State v. Barnett, 141 N.C. App. 378, 383, 540

S.E.2d 423, 427 (2000) (“[T]he evidence need only give rise to a

reasonable inference of guilt for the case to be properly

submitted to the jury.”), aff’d, 354 N.C. 350, 554 S.E.2d 644

(2001). Accordingly, defendant’s argument as to the element of

intent is overruled.

Defendant next argues that the State failed to produce a

showing that the breaking or entering was without the consent of
 12

the owner or occupant. Williams, 330 N.C. at 585, 411 S.E.2d at

818. In North Carolina, “as between the mortgagor and the

mortgagee, the legal title to the mortgaged premises is vested

in the mortgagee, while the mortgagor is looked upon as the

equitable owner of the land. This relative position continues

until the land is redeemed or until the mortgage is foreclosed.”

Stevens v. Turlington, 186 N.C. 191, 191, 119 S.E. 210, 211-12

(1923). Here, Ms. Lambeth was the mortgagor of the property,

and Wells Fargo was the mortgagee. Although Wells Fargo had

given notice of pre-foreclosure to the Lambeths in June 2011,

foreclosure proceedings had not yet occurred when defendant

entered the home. Thus, because the land was neither redeemed

nor foreclosed, Ms. Lambeth was the equitable owner during the

time period in question. Because Ms. Lambeth testified that she

did not consent to defendant entering the house, we hold that

the State produced substantial evidence that the owner or

occupant did not consent to the entry. Defendant’s argument is

without merit.

III. Instruction on Abandonment

Defendant next argues that the trial court committed plain

error when it did not instruct the jury that abandonment was a

defense to larceny in this case. We disagree.

Because defendant did not object on this ground at trial,

the appropriate standard of review is plain error. State v.
 13

Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983). Plain

error arises when the error is “so basic, so prejudicial, so

lacking in its elements that justice cannot have been done[.]”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(citation and quotation marks omitted).

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 quotation marks omitted).

Property that has been abandoned by the owner cannot be the

subject of larceny. State v. Hall, 57 N.C. App. 544, 546, 291

S.E.2d 873, 875 (1982). The party relying on the defense of

abandonment must affirmatively show by clear, unequivocal, and

decisive evidence the intent of the owner to permanently

terminate ownership of the disputed property. State v. West,

293 N.C. 18, 30, 235 S.E.2d 150, 157 (1977). The owner of

personal property may give up his ownership by abandoning the

property, and if he does so, title passes to the first person

who takes possession thereafter. Id.
 14

Defendant argues the trial court plainly erred in failing

to instruct on abandonment because the evidence supported such

an instruction. Defendant contends that Ms. Lambeth left her

personal property unattended for approximately ten months after

leaving the home, and that she moved to a location not far from

her old home, thus indicating clearly, unequivocally, and

decisively that she abandoned the property left in the previous

residence. We disagree. Ms. Lambeth testified that she did not

intend to terminate her ownership of the property that defendant

took from the home. To the contrary, she testified that she

intended to return to the house and retrieve the items, which

were only left behind temporarily because there was limited

space in the moving vehicle and limited time to use it. Given

this testimony, we conclude that there was not clear,

unequivocal and decisive evidence that Ms. Lambeth permanently

terminated ownership of the property in this case. Thus,

because there was insufficient evidence to support a jury

instruction on the defense of abandonment, the trial court did

not err, let alone commit plain error, by declining to issue

such an instruction. See State v. Napier, 149 N.C. App. 462,

463, 560 S.E.2d 867, 868 (2002); State v. Torain, 316 N.C. 111,

116, 340 S.E.2d 465, 468 (1986) (without error, there cannot be

plain error).

IV. Ineffective Assistance of Counsel
 15

Defendant’s final argument is that her trial counsel’s

failure to request an instruction on the defense of abandonment

constituted ineffective assistance of counsel. To establish a

claim of ineffective assistance of counsel, defendant must show

that her trial counsel’s performance was deficient and that this

deficient performance prejudiced defendant. State v. Braswell,

312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). Having found

no error in the trial court’s decision not to instruct on the

defense of abandonment, we hold that defendant has failed to

show that her attorney’s failure to request such an instruction

was deficient or prejudiced her in any way. Thus, defendant’s

argument is without merit.

Conclusion

In sum, the trial court did not commit error: (1) in

admitting photographs for the purpose of illustrating relevant

testimony; (2) by denying defendant’s motion to dismiss; and (3)

by not instructing the jury on abandonment as defense to

larceny. Further, defendant was not denied effective assistance

of counsel when her trial attorney failed to request an

instruction on abandonment.

NO ERROR.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).