An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1149
Filed: 5 May 2015
Guilford County, No. 12 CRS 085608-9
STATE OF NORTH CAROLINA,
v.
CHARLES WILSON ROBERTSON, Defendant
Appeal by defendants from judgments entered 30 January 2014 by Judge
Tanya T. Wallace in Guilford County Superior Court. Heard in the Court of Appeals
18 March 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Ann W.
Matthews, for the State.
Kimberly P. Hoppin, for defendant.
ELMORE, Judge.
On 16 January 2014, a jury found defendant guilty of first degree burglary,
felonious larceny after burglary, and felonious possession of stolen goods. The trial
court sentenced defendant to consecutive terms of active imprisonment of 128-166
months for the first degree burglary conviction and 18-31 months for the larceny after
burglary conviction. The trial court arrested judgment on defendant’s conviction for
STATE V. ROBERTSON
Opinion of the Court
felonious possession of stolen goods. After careful consideration, we hold that
defendant received a trial free from prejudicial error.
I. Facts
At approximately 2:00 a.m. on 7 August 2012, on-duty Officers J.C. McIntosh
and Sheila Lennox-Spaulding of the Greensboro Police Department were traveling in
a patrol vehicle on Martin Luther King Boulevard in Greensboro. While they were
driving northbound, the officers observed two males on the sidewalk, walking in
tandem not more than one foot from each other, approaching their direction. As their
marked vehicle approached the two males, the officers noticed a large, square, flat-
appearing object wrapped in a blanket and tucked under the arm of Charles Wilson
Robertson (defendant). The other individual, Larry Doggett, carried a book bag. The
two men immediately left the sidewalk and began to walk away from the officers.
Doggett went behind a bush and reappeared without the bag. Defendant dropped the
flat object on the ground, and the officers determined the object to be a television.
The officers exited their vehicle and approached the men. Officer McIntosh
asked defendant about the television, and defendant repeatedly denied having any
knowledge about its existence. The officers decided to detain both men. Defendant
did not obey the officers’ commands and appeared to reach for his back pocket while
Officer Lennox-Spaulding attempted to handcuff him. For officer safety purposes,
Officer McIntosh tackled defendant in order to detain him. A taser and cell phone
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Opinion of the Court
fell out of defendant’s pocket when he went to the ground. In the backpack carried
by Doggett, the officers found two laptop computers and several hats.
Officer B.R. Denny examined the two computers and traced the computers’
serial numbers to identify their registered owner. The registered owner was
Chauncey Gianni Bennett, whose address was 219 Southside Square, a location
within walking distance of where the officers first noticed defendant and Doggett.
At approximately 2:30 a.m., Officer Denny and Sergeant A.H. Hollis went to
219 Southside Square and made contact with the tenant, Barbara Bennett (the
victim). The building at 219 Southside Square has a commercial space on the first
floor and residential quarters upstairs. There is an entrance and stairway leading to
the residence from inside the downstairs commercial space. The building also
contains another door and stairway to the residence located on the front exterior of
the building, which is accessible from the street and separate from the business. This
door is the entrance way used by the victim’s family to access her apartment. Her
apartment also contains a back door with a stairway leading to a courtyard.
The victim was alone in the apartment when the officers arrived, but her two
adult sons, one of whom was Chauncey Bennett, also lived with her. The victim
testified at trial that she went to bed and fell asleep between 9:00 - 10:00 p.m. on 6
August. Her two sons were with her in the apartment that evening, but they left at
some point after she fell asleep.
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Opinion of the Court
When the officers arrived at the victim’s apartment building, the victim invited
them inside her living space. The officers asked her to search the apartment for any
missing items. The victim discovered that items were taken from her apartment
without her consent, including two laptops, a blanket, hats, cell phones, and a taser.
The officers presented the victim with items that had been retrieved from defendant
and Doggett, and she identified each item as belonging to her or her sons.
II. Analysis
a.) Motion to Dismiss: First Degree Burglary & Larceny Pursuant to a
Burglary
Defendant argues the trial court erred by denying his motion to dismiss the
charges of first degree burglary and larceny pursuant to burglary. Specifically,
defendant avers the State failed to present sufficient evidence that a “breaking”
occurred. Additionally, defendant argues that due to the absence of sufficient
evidence of a “breaking,” the trial court erred by allowing the State to rely on the
doctrine of recent possession to withstand defendant’s motion to dismiss. We
disagree.
We review a 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). This Court must determine “whether
there is substantial evidence of each essential element of the offense charged and of
the defendant being the perpetrator of the offense.” State v. Clagon, 207 N.C. App.
346, 350, 700 S.E.2d 89, 92 (2010) (citation and quotation marks omitted). “In ruling
on a motion to dismiss, the trial court must examine the evidence in the light most
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Opinion of the Court
favorable to the State, and the State is entitled to every reasonable inference and
intendment that can be drawn therefrom.” Id. (citation and quotation marks
omitted).
The test of the sufficiency is the same whether the evidence
is circumstantial or direct, or both: the evidence is
sufficient to withstand a motion to dismiss and to take the
case to the jury if there is evidence which tends to prove
the fact or facts in issue or which reasonably conduces to
its conclusion as a fairly logical and legitimate deduction,
and not merely such as raises a suspicion or conjecture.
State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981) (citations and quotation
marks omitted).
In order to sustain a conviction for the felony charge of first degree burglary,
the State must provide substantial evidence that defendant committed “(1) the
breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used
as a sleeping apartment (5) of another (6) which is actually occupied at the time of
the offense (7) with the intent to commit a felony therein.” State v. Blyther, 138 N.C.
App. 443, 447, 531 S.E.2d 855, 858 (2000) (citation and quotation marks omitted). A
larceny can also constitute a felony if it is committed pursuant to a burglary. N.C.
Gen. Stat § 14-72(b)(2) (2013). Thus, a conviction for felony larceny pursuant to a
burglary requires sufficient evidence that a “breaking” occurred.
A “breaking” is “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.”
State v. Cunningham, 140 N.C. App. 315, 321, 536 S.E.2d 341, 346 (2000) (citation
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Opinion of the Court
and quotation marks omitted). “Breaking” can be established by circumstantial
evidence that “prior to entry all doors and windows were closed” or “evidence of habit
or custom” that the doors and windows were typically closed at the time of entry.
State v. Howell, 335 N.C. 457, 473, 439 S.E.2d 116, 125 (1994).
Where the evidence is purely circumstantial, the State can rely on the doctrine
of recent possession to raise the presumption that the possessor of stolen property is
guilty of a breaking and entering as long as “there is sufficient evidence that a
building has been broken into and entered[.]” State v. Maines, 301 N.C. 669, 674, 273
S.E.2d 289, 293 (1981). “When the doctrine of recent possession applies in a
particular case, it suffices to repel a motion [to dismiss] and defendant’s guilt or
innocence becomes a jury question.” Id.
Because defendant only challenges the sufficiency of the evidence with regard
to “breaking,” we limit our analysis to a discussion of that element. In the light most
favorable to the State, we hold the State presented sufficient circumstantial evidence
of a “breaking.”
The victim testified the door from the commercial space downstairs that leads
to her apartment always stays locked. She further testified that both her front and
back doors were closed when she went to sleep and when the police arrived. The
victim also stated that it is her usual practice to make sure all the doors leading to
her apartment are physically closed, and her sons typically keep the front door shut
when they leave the apartment. Moreover, when the officers arrived to her
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Opinion of the Court
apartment, she initially opened her window to speak to them. Because the victim
testified that the window and all of the doors leading to her apartment were closed
and were usually kept shut, and the property in question went missing from her
apartment without her consent, the evidence was sufficient to establish that a
breaking of her residence occurred while she was asleep by an individual turning the
front doorknob and entering the residence. See State v. Alexander, 18 N.C. App. 460,
462, 197 S.E.2d 272, 273 (1973) (“The State must present evidence that a breaking
occurred, or from which it may reasonably be inferred that the defendant broke into
the dwelling. Such proof is usually accomplished by testimony showing that prior to
the entry all doors and windows were closed.”); see also State v. Sweezy, 291 N.C. 366,
383, 230 S.E.2d 524, 535 (1976) (“It is well established that the mere pushing or
pulling open of an unlocked door constitutes a breaking.”). As such, the trial court
did not err by denying defendant’s motion to dismiss for insufficient evidence of a
“breaking.” Because the State presented sufficient evidence of a “breaking,” the trial
court did not err by allowing the State to rely on the doctrine of recent possession to
withstand defendant’s motion to dismiss.
b.) Acting in Concert
Next, defendant argues the trial court’s jury instruction on acting in concert
was prejudicial error because that theory of guilt was not supported by the evidence.
We disagree.
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Opinion of the Court
We evaluate a challenge to the trial court’s jury instructions under a de novo
standard of review. State v. Gabriel, 207 N.C. App. 440, 443, 700 S.E.2d 127, 129
(2010). In general, a trial court errs by instructing the jury “upon a theory of a
defendant’s guilt which is not supported by the evidence.” State v. Brown, 80 N.C.
App. 307, 311, 342 S.E.2d 42, 44 (1986). Despite a trial court’s error, a defendant in
challenging non-constitutional matters carries the burden to establish prejudicial
error— “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.”
N.C. Gen. Stat. § 15A-1443(a) (2013).
Even if we presume arguendo that the trial court’s jury instruction on acting
in concert was not supported by the evidence, defendant has failed to establish
prejudicial error. The trial court did not instruct the jury that it could only convict
defendant exclusively based on a theory of acting in concert with Doggett. With
regard to the burglary charge, the trial court instructed the jury: “[i]f you find from
the evidence . . . the defendant . . . acting either by himself or together with
[Doggett]” committed the elements of first-degree burglary, “it would be your duty to
return a verdict of guilty[.]” Similarly, the trial court instructed the jury on the
larceny charge: “[i]f you find from the evidence . . . the defendant, acting either by
himself or acting together with [Doggett],” committed the elements of larceny
pursuant to a burglary, “it would be your duty to return a verdict of guilty[.]”
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Opinion of the Court
(emphasis added). Thus, the jury was free to convict defendant based on his actions
alone.
Had the trial court omitted the acting in concert instruction from the jury’s
consideration, no reasonable possibility exists that the jury would have acquitted
defendant of the burglary and larceny charges. The relevant evidence shows that
defendant was in exclusive possession of identifiable property, including the
television, blanket, taser, and cell phone, which were taken from the victim’s
residence without her permission at night while she was asleep in her home.
Defendant’s possession of the stolen property near the victim’s home at 2:00 a.m.
shortly after the burglary and larceny occurred raised the presumption that
defendant was guilty of the larceny and the burglary pursuant to the recent
possession doctrine. The evidence presented at trial relating to Doggett was almost
identical but for the property in Doggett’s possession. No additional evidence relating
to Doggett was presented to tip the scales in favor of the jury’s decision to convict
defendant under a theory of acting in concert. Accordingly, defendant has failed to
establish prejudicial error as a result of the trial court’s purported erroneous acting
in concert instruction.
c.) Felony Breaking or Entering (N.C. Gen. Stat. § 14-54(a))
Defendant argues the trial court erred by failing to instruct the jury on felony
breaking or entering, a lesser-included offense of first degree burglary. Assuming
arguendo it was error for the trial court to fail to instruct on the lesser-included
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Opinion of the Court
offense, defendant invited any such error. Accordingly, we dismiss this argument on
appeal.
Pursuant to N.C. Gen. Stat. § 15A–1443(c) (2013), “[a] defendant is not
prejudiced by the granting of relief which he has sought or by error resulting from his
own conduct.” Thus, “a defendant who invites error has waived his right to all
appellate review concerning the invited error, including plain error[.]” State v.
Spence, __ N.C. App. __, __, 764 S.E.2d 670, 677 (2014) (citation and quotation marks
omitted).
Here, defendant’s attorney specifically objected to the instruction on the lesser-
included offense of felonious breaking or entering:
THE COURT: [N]o one’s asking the charge on felonious
breaking or entering as a lesser included of the first degree
burglary.
PROSECUTOR: I guess to be safe then, Your Honor, I
would ask for that.
DEFENSE ATTORNEY: And, Your Honor, we would object
to that.
THE COURT: All right. You’d asked for the first degree
burglary and the felonious breaking or entering as a lesser
included.
PROSECUTOR: Yes.
Despite the State’s request that the trial court instruct the jury on felony breaking or
entering, defendant’s attorney specifically opposed such an instruction. As such,
defendant cannot argue on appeal that he was prejudiced by the trial court’s decision
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Opinion of the Court
not to include an instruction on the lesser-included offense of felony breaking or
entering when he specifically sought such an outcome at trial. See State v. Hope, __
N.C. App. __, __, 737 S.E.2d 108, 113 (2012) (holding the defendant waived his right
to appellate review of a purported erroneous jury instruction when “defendant invited
the [error] . . . by objecting to the correct instruction, requesting the incorrect
instruction, and by choosing to forgo . . . [the] instruction when given the option”).
Accordingly, we dismiss this argument on appeal.
d.) Ineffective Assistance of Counsel
In anticipation that we might rule defendant invited error with regard to the
previous issue, defendant contends his trial counsel’s failure to concur with the
State’s request for an instruction on felony breaking or entering amounted to
ineffective assistance of counsel. We disagree.
“The accepted practice is to raise claims of ineffective assistance of counsel in
post-conviction proceedings, rather than direct appeal.” State v. Dockery, 78 N.C.
App. 190, 192, 336 S.E.2d 719, 721 (1985). Should this Court rule that an ineffective
assistance of counsel claim has been brought prematurely by a direct appeal, we shall
dismiss the claim “without prejudice to the defendant’s rights to reassert [the claim]
during a subsequent MAR proceeding.” State v. Stroud, 147 N.C. App. 549, 554, 557
S.E.2d 544, 547 (2001) (citation and quotation marks omitted).
Although defendant raises questions regarding his trial counsel’s handling of
the lesser-included jury instruction, we are unable to find ineffective assistance of
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Opinion of the Court
counsel per se from the face of the record. As such, defendant prematurely asserted
his ineffective assistance of counsel claim by requesting we review this issue directly
on appeal. Thus, we dismiss defendant’s claim without prejudice to his right to file
appropriate motions in the trial court. See State v. Ware, 125 N.C. App. 695, 697, 482
S.E.2d 14, 16 (1997) (dismissing the defendant’s appeal where the issues could not be
determined from the record and concluding that “[t]o properly advance these
arguments, defendant must move for appropriate relief pursuant to G.S. 15A-1415[ ]
and G.S. 15A–1420[ ]”).
III. Conclusion
In sum, the trial court did not err by denying defendant’s motion to dismiss the
burglary and larceny charges. Even if the trial court erred by providing the jury with
the acting in concert instruction, any such error was non-prejudicial. Additionally,
defendant invited any purported error arising from the trial court’s failure to instruct
on the lesser-included offense of felony breaking or entering. Finally, we dismiss
defendant’s premature ineffective assistance of counsel claim without prejudice.
No prejudicial error.
Judges GEER and INMAN concur.
Report per Rule 30(e).
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