An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-734
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10 CRS 258879
10 CRS 258881
ROBERT ADAM KAPFHAMER
Appeal by Defendant from judgment entered 6 July 2012 by
Judge Linwood O. Foust in Mecklenburg County Superior Court.
Heard in the Court of Appeals 12 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Kevin G. Mahoney, for the State.
Irving Joyner, Esq., for defendant.
DILLON, Judge.
Robert Adam Kapfhamer (“Defendant”) appeals from a judgment
convicting him of felonious possession of stolen goods and of
misdemeanor breaking or entering, challenging the trial court’s
denial of his motion to dismiss. We find no error.
The evidence of record tends to show the following:
Defendant and Cody Dedischew rented separate bedrooms in a
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boarding house in Mecklenburg County. On 25 November 2010, Mr.
Dedischew left the country to attend a funeral, leaving his
bedroom door locked, and giving no one permission to enter his
room.
On the night of 25 November 2010, Defendant called the
police to report a breaking and entering at the house. Randall
Jones, who owned the boarding house, discovered that the front
door and all of the bedroom doors had been kicked in. He said
that Defendant looked frazzled and very nervous and that
Defendant indicated he did not think anything had been stolen.
When Mr. Dedischew returned from the funeral, he discovered
that a television, a camera, and a Black and Decker drill were
missing from his bedroom. Approximately three months after the
break-in, police informed Mr. Dedischew that his drill had been
recovered from a local pawn shop and that the pawn ticket for
the drill indicated that it had been pawned by Defendant. When
police confronted Defendant with this evidence, Defendant
claimed that he had not been responsible for the break-in but
that he took advantage of the fact that the boarding house had
been broken into by taking and pawning Mr. Dedischew’s drill,
stating that he needed the money for gas.
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On 27 June 2011, Defendant was indicted on two counts of
larceny after breaking and entering, and two counts felonious
breaking and entering, and one count of felonious possession of
stolen goods. After a trial on the merits, the jury returned
verdicts of guilty of felonious possession of stolen goods and
of misdemeanor breaking or entering. The trial court entered a
judgment consistent with the jury’s verdict, sentencing
Defendant to 7 to 9 months incarceration, which the trial court
suspended, subject to the condition that Defendant was placed on
30 months supervised probation. From this judgment, Defendant
appeals.
I: Motion to Dismiss
On appeal, Defendant contends the trial court erred by
denying his motion to dismiss the charges of felonious
possession of stolen property and of misdemeanor breaking or
entering. We disagree.
“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). “‘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 (2) of defendant’s
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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, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150
(2000) (citation and quotation marks omitted). “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). “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)
(citation omitted).
A: Felonious Possession of Stolen Property
“The essential elements of felonious possession of stolen
property are: (1) possession of personal property, (2) which was
stolen pursuant to a breaking or entering, (3) the possessor
knowing or having reasonable grounds to believe the property to
have been stolen pursuant to a breaking or entering, and (4) the
possessor acting with a dishonest purpose.” State v. McQueen,
165 N.C. App. 454, 459, 598 S.E.2d 672, 676 (2004), disc. review
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denied, 359 N.C. 285, 610 S.E.2d 385 (2005) (citing N.C. Gen.
Stat. §§ 14-71.1, 14-72(c)) (citations omitted).
The indictment in this case charging Defendant with
felonious possession of stolen property alleged the following:
“[O]n or about the 29th day of November, 2010, in Mecklenburg
County, [Defendant] did unlawfully, willfully and feloniously
possess a drill, the personal property of Cody Dedischew, having
some value, which property was stolen property, knowing and
having reasonable grounds to believe the property to have been
feloniously stolen, taken, and carried away pursuant to a
violation of Section 14-54 of the General Statutes of North
Carolina.”
Defendant contends the State did not present substantial
evidence of Defendant’s “possession of personal property,” or of
Defendant’s “knowing or having reasonable grounds to believe the
property to have been stolen pursuant to a breaking or
entering.” McQueen, 165 N.C. App. at 459, 598 S.E.2d at 676.
We address each argument in turn.
The first element of possession of stolen goods is that a
defendant must have had the personal property in his possession.
“[P]ossession [of stolen goods] . . . may be either actual or
constructive. Constructive possession exists when the
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defendant, while not having actual possession [of the goods], .
. . has the intent and capability to maintain control and
dominion over the[m].” State v. Szucs, 207 N.C. App. 694, 698,
701 S.E.2d 362, 365 (2010) (citation and quotation marks
omitted) (alterations in original). Defendant contends on
appeal there “was no evidence presented in this case that
[Defendant] was in possession of any property which belonged to
and had been stolen from Cody Dedischew on November 29, 2010.”
The State presented the following evidence tending to show
Defendant’s possession of the drill: Defendant admitted he took
the drill. Further, Defendant’s identification was presented to
the pawn shop operator when he pawned the drill, and the
operator testified that he checked the identification “[v]ery
closely” to be certain the identification was current and that
the identification matched the individual. Accordingly, we
believe there was substantial evidence to support the element of
possession.
Next, Defendant argues the State did not present
substantial evidence of Defendant’s “knowing or having
reasonable grounds to believe the property to have been stolen
pursuant to a breaking or entering.” McQueen, 165 N.C. App. at
459, 598 S.E.2d at 676. According to Defendant, Mr. Jones saw
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the drill in a common area of the house a few days after the
break-in had occurred, which supplied evidence from which the
jury could infer that the drill was not taken during the break-
in or that Defendant entered Mr. Dedischew’s room to take it.
However, there was also evidence that the drill was taken from
Mr. Dedischew’s bedroom. Specifically, Mr. Dedischew testified,
that he had left the drill on the floor of his room before
leaving for the funeral. Further, the jury could infer from the
evidence that Defendant was the sole perpetrator of the breaking
and entering into Mr. Dedischew’s room. We, therefore, believe
that the State presented substantial evidence from which a jury
could infer that of Defendant’s “knowing or having reasonable
grounds to believe the property to have been stolen pursuant to
a breaking or entering.” Id. at 459, 598 S.E.2d at 676.
Accordingly, we hold that the trial court did not err by denying
Defendant’s motion to dismiss on this ground. State v. Cox, __
N.C. __, __, 749 S.E.2d 271, 277 (2013) (stating that
“evidentiary contradictions and discrepancies are for the jury
to resolve and do not warrant dismissal”).
B: Misdemeanor Breaking or Entering
In Defendant’s next argument on appeal, he contends the
trial court erred by denying his motion to dismiss the charge of
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misdemeanor breaking or entering. “Misdemeanor breaking or
entering, . . . is a lesser included offense of felonious
breaking or entering and requires only proof of wrongful
breaking or entry into any building.” State v. Johnson, 208
N.C. App. 443, 448, 702 S.E.2d 547, 551 (2010), disc. review
denied, 365 N.C. 84, 706 S.E.2d 247 (2011) (citing N.C. Gen.
Stat. § 14-54(b)) (additional citation omitted).
The indictment charged Defendant with felonious breaking
and entering; however, the jury convicted him of the lesser
included offense of misdemeanor breaking or entering.
Defendant’s argument on appeal is predicated on the
uncontroverted fact that Defendant and Mr. Dedischew each rented
separate private bedrooms and shared common areas in one house –
the house referenced in the indictment. On appeal, Defendant
contends essentially that there was not substantial evidence
presented that Defendant kicked in the door to Mr. Dedischew’s
locked bedroom, and that, the foregoing notwithstanding, a
locked room within a boarding house does not qualify as a
“building” for purposes of the application of N.C. Gen. Stat.
14-54(b). We find these arguments meritless.
We first address Defendant’s argument that the State did
not present substantial evidence that Defendant broke into Mr.
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Dedischew’s bedroom. Assuming arguendo there was not
substantial evidence that Defendant broke into Mr. Dedischew’s
bedroom, to convict Defendant of a violation of N.C. Gen. Stat.
14-54(b), “it is sufficient if the State’s evidence shows either
a breaking or an entering; it need not show both.” State v.
O'Neal, 77 N.C. App. 600, 605, 335 S.E.2d 920, 923 (1985)
(emphasis added). In this case, there was evidence tending to
show that the drill was on the floor in Mr. Dedischew’s locked
bedroom, and that Defendant pawned the drill to get money for
gas. Even if the jury believed Defendant was not the
perpetrator responsible for kicking in Mr. Dedischew’s bedroom
door - but merely took advantage of the breaking and entering to
pawn the drill - there is evidence from which the jury could
infer that Defendant nonetheless entered Mr. Dedischew’s bedroom
to remove the drill.
Lastly, we address Defendant’s argument that a locked room
within a building does not satisfy the statutory requirement of
breaking and entering a “building” pursuant to N.C. Gen. Stat. §
14-54. N.C. Gen. Stat. § 14-54(c) defines “building” as
“include[ing] any dwelling, dwelling house, uninhabited house,
building under construction, building within the curtilage of a
dwelling house, and any other structure designed to house or
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secure within it any activity or property.” Id. This Court has
previously held contrary to Defendant’s argument. In State v.
Clinton, 3 N.C. App. 571, 574, 165 S.E.2d 343, 345 (1969), in
the context of breaking and entering, we held that “a room in a
rooming house” is included “in the meaning of the term ‘dwelling
house.’” Id.; see also State v. Merritt, 120 N.C. App. 732,
736, 463 S.E.2d 590, 592 (1995), disc. review denied, 342 N.C.
897, 467 S.E.2d 738 (1996) (holding that “[t]here may be several
dwelling units in a single structure, as the rooms in an inn,
hotel or lodging house. In such case, each room is regarded as
a ‘dwelling house’ of its respective occupant”). As such, in
this case Mr. Dedischew’s room within the rooming house was
exclusively his “dwelling house” within the meaning of N.C. Gen.
Stat. § 14-54, and not that of Defendant.
For the foregoing reasons, we believe the trial court did
not err in denying Defendant’s motion to dismiss the charge of
breaking and entering.
NO ERROR.
Judge STROUD and Judge HUNTER, JR. concur.
Report per Rule 30(e).