Opinion
No. COA10-997
Filed 7 June 2011 This case not for publication
Appeal by Defendant from judgment entered 14 January 2010 by Judge James G. Bell in Johnston County Superior Court. Heard in the Court of Appeals 26 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General V. Lori Fuller, for the State. William D. Spence, for Defendant-appellant.
Johnston County Nos. 09 CRS 52441 09 CRS 3072.
Keith Ervin Frasier ("Defendant"), appeals from judgments based on jury verdicts convicting him of breaking and entering, larceny after breaking and entering, and having attained a habitual felon status. Defendant contends the trial court erred in denying motions to dismiss each charge for lack of substantial evidence, refusing to instruct the jury on the lesser included offense of misdemeanor breaking and entering, and giving improper jury instructions on acting in concert and flight. We find no error.
I. Factual and Procedural History
An indictment from the Superior Court of Johnston County, dated 1 June 2009, charged Defendant with felony breaking and entering, larceny after breaking and entering, and possession of stolen goods. A separate indictment alleged Defendant had been convicted of three prior felonies and attained the status of a habitual felon. Defendant entered a plea of not guilty on all charges. A jury trial was held 11 January 2010. At trial, the State's evidence tended to show the following.
Mr. and Mrs. James Lassiter lived at 201 Mason Street in Princeton, North Carolina (the "Lassiter Home"). Mr. Lassiter's mother, who suffered from dementia, lived in an apartment in the rear of his home. For protection, he had a 3-camera surveillance system covering the front yard and the rear deck of his home. The system was capable of recording the area at the rear door of the house in case Ms. Lassiter were to wander off the property. The Lassiters' backyard was also enclosed by a three and a half foot high chain link fence.
On 20 April 2009, Mr. Lassiter was in the home until around 9:00 a.m., when he left for work. Before he left, his mother was visited by a home health nurse. After he left, around 11:30 a.m., she received her daily visit from "Meals on Wheels." The nurse and "Meals on Wheels" representative entered the mother's apartment through a sliding door at the side of the house.
At 1:48 p.m., Gregory Hershman, a truck driver, noticed what he believed to be broken glass in the rear door of the Lassiter Home. The rear door of the Lassiter Home faced a commonly travelled paved road, while Mason Street was a "grassy road," not often used. After noticing the broken glass, Mr. Hershman also noticed a female in a white coat who appeared to move to the corner of the deck behind a chimney in order to hide from view. Mr. Hershman continued on his delivery and came by the Lassiter Home a second time about fifteen minutes later on his return route. After confirming the glass in the back door was broken, Mr. Hershman notified Sergeant Tyrone Sutton of the Princeton Police Department.
Shortly thereafter, Sergeant Sutton arrived at the Lassiter Home to investigate. After conducting a search of the perimeter and observing signs of a break-in, Sergeant Sutton located Defendant and Heather Dawes ("Dawes"), who was wearing a white coat, approximately 100 yards away from the Lassiter Home. Sergeant Sutton stopped the two individuals and arrested Dawes for breaking and entering based on the description by Mr. Hershman, his observations of the Lassiter Home, and Dawes' proximity to the scene. Since there was no description of Defendant or indication of his involvement in unlawful activity, he was not detained at that time.
Mrs. Lassiter discovered the break-in upon her arrival home around 5:00 p.m. and called 9-1-1. After his wife called to inform him of the break-in, Mr. Lassiter returned home immediately. Sergeant Sutton and Officer Casey Jones of the Princeton Police Department had already arrived by the time Mr. Lassiter came home. Though he had locked the rear door to the house prior to leaving for work, he found it unlocked and ajar, with the glass pane broken. Additionally, Mr. Lassiter found a hammer lying on a card table near the broken door. The hammer was not there when he left his house earlier that morning. Missing from inside the home were pieces of gold jewelry and a jug of coins containing approximately 350-400 dollars.
Mr. Lassiter then reviewed the surveillance video. According to the time stamp on the video, at 1:41 p.m., Defendant and Dawes can be seen riding together on a bicycle on the paved road behind the Lassiter Home. Dawes is in a white coat. At 1:44 p.m., Defendant is seen walking on the same street. At 1:48 p.m., the recording shows Defendant and Dawes cross the gate of the Lassiter's rear deck and walk towards the home. The recording shows Dawes standing behind the chimney at the moment Mr. Hershman passed in his truck. Fifteen seconds after the time Mr. Hershman reported passing the Lassiter Home, the rear screen door can be seen opening on the video. At 2:02 p.m., Mr. Hershman can be seen stopping behind the home to inspect and then driving away. At 2:09 p.m., Sergeant Sutton arrives at the scene in his patrol car.
Mr. Lassiter shared the surveillance video with Sergeant Sutton. Sergeant Sutton recognized the individuals on the recording as Defendant and Dawes, whom he had encountered earlier in the day. Sergeant Sutton testified at trial that he knew the Defendant "very well." Sergeant Sutton and Officer Jones went to Defendant's residence to arrest Defendant based on the surveillance video.
As Officer Jones approached the rear of Defendant's house, Defendant was standing on the back porch. Officer Jones, who was in uniform, exited his marked patrol vehicle and stated that he needed to speak with Defendant. As Officer Jones came within "a few steps" of Defendant, Defendant turned and ran. Officer Jones gave chase, identifying himself as a police officer. Sergeant Sutton, who had approached the house from the front, noticed Defendant's flight and returned to his patrol vehicle, joining Officer Jones in the pursuit. Defendant was apprehended and arrested approximately two to three blocks from his home. On 20 April 2009, Defendant was brought before a Johnston County Magistrate who signed an order for his arrest.
While awaiting trial, Defendant engaged in several phone calls with Dawes, who was no longer in custody. Since Defendant was in the custody of Johnston County at the time of the calls, his phone calls were recorded. In one such call, Defendant questioned Dawes on her conversation with law enforcement. In the course of this call, Defendant asked Dawes about what she had done with some jewelry. Dawes responded that the jewelry had been discarded and was no longer in her possession.
At the close of the State's case, Defendant moved to dismiss all charges for lack of sufficient evidence. The trial court denied the motion. Defendant offered no evidence and renewed his motion to dismiss, which was again denied.
During the jury charge conference, Defendant requested an instruction on the lesser-included offense of misdemeanor breaking and entering. The trial court denied this request. Defendant also objected to the inclusion of instructions on flight and acting in concert requested by the District Attorney. These objections were also overruled.
The jury found Defendant guilty of felonious breaking and entering, felonious larceny after breaking and entering, and felonious possession of stolen goods or property.
The jury also found Defendant guilty of attaining the status of a habitual felon. At sentencing, the trial court arrested judgment on the charge of felonious possession of stolen goods or property. The court consolidated the felonious breaking and entering, felonious larceny, and habitual felon charges. Defendant was sentenced within the presumptive range for a Class C felony to a minimum of 150 and a maximum of 189 months imprisonment.
II. Jurisdiction and Standard of Review
Defendant appeals as a matter of right, pursuant to N.C. Gen. Stat. § 7A-27(b). Jurisdiction is granted to this Court by N.C. Gen. Stat. §§ 15A-1444(a) and 15A-1442.
In ruling on a criminal defendant's motion to dismiss for lack of substantial evidence, the Court must determine whether substantial evidence exists for each element of the charged offense. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002); State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008). The denial of this motion is a question of law which is reviewed de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). Substantial evidence is "`relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" State v. Cross, 345 N.C. 713, 717, 483 S.E.2d 432, 434 (1997) (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). "[I]f there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the Defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (citation and quotation marks omitted). Evidence must be viewed in the light most favorable to the State, "giving the State the benefit of every reasonable inference to be drawn from it." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382 (1988).
We also review de novo assignments of error challenging the trial court's decisions on jury instructions. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
III. Analysis
A. Defendant's Motion to Dismiss (1) Felony Breaking and Entering and (2) Larceny after Breaking and Entering
Though Defendant additionally moved to dismiss the charge for possession of stolen goods, this issue was not raised on appeal.
The elements of felonious breaking and entering are (1) the breaking or entering (2) of any building (3) with intent to commit any felony or larceny therein. N.C. Gen. Stat. § 14-54(a) (2009). The breaking or entering must be done without the consent of the landowner. State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992). The elements of larceny require that a defendant (1) took the property of another and (2) carried it away (3) without the owner's consent and (4) with the intent to deprive the owner of his property permanently. State v. Perry, 305 N.C 225, 233, 287 S.E.2d 810, 815 (1982), overruled on other grounds by State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916 (2010).
Defendant argues the evidence presented was not sufficient to take the case to a jury. Defendant asserts there is a lack of evidence showing that he entered the Lassiter Home or that he had the intent to commit larceny at the time of the breaking and entering. We disagree.
When a motion to dismiss challenges the sufficiency of circumstantial evidence, the Court must determine whether a reasonable inference of Defendant's guilt exists that could be drawn from the circumstances. State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965).
Here, the State presented sufficient circumstantial evidence of both identity and intent. The surveillance video shows Defendant and Dawes breaching the threshold of the Lassiter property and walking towards the rear door of the home. Within a twenty-eight minute period, the glass pane of the rear door was broken, the screen door was opened, and Mr. Hershman noticed Dawes's furtive conduct of ducking behind the home. Sergeant Sutton responded to the Lassiter Home and identified Defendant and Dawes in proximity to the home, arresting Dawes based on Mr. Hershman's description.
After returning to his home, Mr. Lassiter found he was missing multiple items of gold jewelry and a jug containing 350-400 dollars in coins. Reviewing the surveillance video, Sergeant Sutton identified Defendant from prior encounters. At trial, Mr. Lassiter positively identified Defendant as the man on the surveillance video. Also in evidence was a phone call made by Defendant to Dawes while he was in the custody of Johnston County. During the call, Defendant makes veiled references to the discarding of jewelry as he questioned Dawes on what she told the police about the incident. We conclude this evidence is sufficient to take the case to jury.
B. Defendant's Motion for a Misdemeanor Breaking and Entering Instruction.
Next, Defendant argues the trial court erred in denying his motion for an instruction on the lesser-included offense of misdemeanor breaking and entering, because there was no evidence of Defendant's intent to commit a felony. We disagree.
"The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense." State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). Where evidence of intent to commit a felony exists, the misdemeanor instruction need not be given. State v. Friend, 164 N.C. App. 430, 442, 596 S.E.2d 275, 284 (2004). Intent for felony breaking and entering may be inferred from the circumstances in lieu of direct evidence. State v. Roberts, 135 N.C. App. 690, 696, 522 S.E.2d 130, 134 (1999). Without other explanation, the requisite intent can be inferred. Id.
Defendant contests the presence of substantial evidence as to intent and cites three cases where the evidence of breaking and entering was found not to be sufficient to establish "intent to commit a felony therein." State v. Worthey, 270 N.C. 444, 154 S.E.2d 515 (1967); State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965); State v. Briggs, 3 N.C. App. 589, 165 S.E.2d 560 (1969). However, each instance cited is distinguishable from the case at hand, as the defendants in those cases were apprehended prior to taking any property or were otherwise prevented from committing larceny in the building.
For example, in Worthey, the defendant was indicted on felonious breaking and entering where he had emerged from the building at the order of police, who had been called by the night manager after noticing activity inside a closed factory. Worthey, 270 N.C. at 445, 154 S.E.2d at 515-16. However, nothing was taken from the property. Id. at 445-46, 154 S.E.2d at 516. Nevertheless, the trial court instructed the jury only on felony breaking and entering without mentioning the possibility of finding the defendant guilty of a misdemeanor. Id. at 446, 154 S.E.2d at 516. On appeal, the trial court was found to have committed prejudicial error. Id. Our Supreme Court held that evidence of the defendant's intent was "circumstantial and did not point unerringly to an intent to commit a felony." Id. Where no evidence indicates items are missing from the building, the defendant reasonably raised a question regarding his felonious intent at the time of the breaking and entering. Id.
Here, Defendant can identify no such question regarding his presence in the Lassiter Home. Gold jewelry belonging to Mr. Lassiter and a jug with 350-400 dollars in coins were taken from the home the day Defendant was recorded at the Lassiter Home. The fact that larceny was committed during this breaking and entering demonstrates Defendant's intent to commit such larceny at the time of the breaking and entering. This evidence is sufficient to justify a felony breaking and entering instruction only. The trial court did not err in denying a motion for a misdemeanor instruction.
C. Jury Charges on "Acting in Concert" and Flight.
Defendant contends that there was lack of substantial evidence that Defendant joined in a common purpose with Dawes to support an instruction on acting in concert. Defendant further contends that the instruction on flight was improper. We disagree.
In order to warrant an instruction on acting in concert, the State must show that Defendant is "present at the scene of the crime" and "acts together with another who does the act necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979).
Surveillance video shows Defendant and Dawes together at the scene of the crime within thirty minutes of discovery of the crime by the police. Defendant and Dawes crossed the chain link fence surrounding the property and walked across the patio towards the rear door. When Mr. Hershman first passed the Lassiter Home, he noticed only the woman in a white coat lurking around the home, attempting to hide from his view. He did not see Defendant with her. Shortly after Mr. Hershman passes the Lassiter Home, the corner of the rear screen door is seen opening on the surveillance video, indicating someone leaving the house. Shortly thereafter, Mr. Hershman notified police, who found the rear door of the home broken. The glass was shattered inwards indicating someone broke the glass from the outside to reach in and unlock the door from the inside. Later in the afternoon, Mr. Lassiter informed police of the items missing from his home. Sergeant Sutton found Defendant and Dawes together in proximity to the crime scene. This evidence is reasonable to support an instruction of acting in concert where it shows Defendant and Dawes acted together to carry out a common plan.
Next, Defendant argues that the jury instruction on flight was in error. We disagree.
"Evidence of a defendant's flight following the commission of a crime may properly be considered by the jury as evidence of guilt or consciousness of guilt." State v. King, 343 N.C. 29, 38, 468 S.E.2d 232, 238 (1996). Nevertheless, in order to instruct the jury on Defendant's flight, there must be "some evidence in the record reasonably supporting the theory that Defendant fled after commission of the crime charged." State v. Leopard, 126 N.C. App. 82, 85, 483 S.E.2d 469, 471-72 (1997) (citation and quotation marks omitted). The relevant factor is whether the evidence shows that Defendant fled the scene of the crime and took steps to avoid apprehension. State v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990). Instructing the jury on flight is not improper merely because there may be other reasonable explanations for Defendant's conduct. State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977).
Defendant contends that he never fled from police in a manner which would support a jury instruction on flight. Defendant claims he was compliant when he and Dawes were stopped near the scene earlier in the afternoon. Defendant states that when Sergeant Sutton and Officer Jones came to his house later in the day there was no indication that he was not free to leave.
While this is accurate, Sergeant Sutton and Officer Jones testified that Defendant continued his flight after Officer Jones identified himself as a police officer and ordered Defendant to stop. This incident occurred the same afternoon as the initial stop. Defendant contends, however, he did not flee "after the commission of the crime charged." In State v. McDougald, 336 N.C. 451, 444 S.E.2d 211 (1994), the Defendant escaped from jail four months after his arrest. This flight was held relevant and probative as evidence of guilty conscience, despite the fact that four months had elapsed since the commission of the crime. Id. at 459, 444 S.E.2d at 215. Here, Defendant was well aware police were investigating the breaking and entering of the Lassiter home, as it had occurred earlier the same day and Defendant had witnessed the arrest of Dawes for that crime. The jury instruction on flight was proper.
D. Defendant's Motion to Dismiss Habitual Felon Status
Based upon the presence of three prior felony convictions, Defendant was sentenced as a habitual felon, pursuant to N.C. Gen. Stat. § 14-7.1. Defendant cites the presence of a one-day variance in the entry of judgment for the third felony on Defendant's record. Defendant claims this variance is material. However, Defendant's brief cites case law contrary to its own point, showing "it [is] the fact that another felony was committed, not its specific date, which [is] the essential question in the habitual felon indictment." State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994). Since the convictions prove that other felonies had been committed, the one-day variance in the entry of judgment does not support a motion to dismiss.
IV. Conclusion
For the foregoing reasons, we conclude that Defendant received a trial free from prejudicial error.
No error.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).