Opinion
No. 07-600.
Filed March 18, 2008.
Gaston County Nos. 03CRS62121, 03CRS62123, 03CRS19229.
Appeal by Defendant from judgment entered 4 December 2006 by Judge Timothy L. Patti in Superior Court, Gaston County. Heard in the Court of Appeals 8 January 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Robert J. Blum, for the State. Leslie C. Rawls, for the defendant-appellant.
Defendant Terry Gilmore appeals his convictions for first-degree murder, first-degree burglary, and robbery with a dangerous weapon. After a careful review of Defendant's arguments on appeal, as well as the record and transcripts before us, we find Defendant received a trial free of error and accordingly uphold his convictions.
On 18 August 2003, Sharon Rollinson and John Stover prepared for bed at Ms. Rollinson's house when they heard a knock on the door. When Ms. Rollinson asked who it was, a male, attempting to disguise himself as a woman, answered, "Tina." Ms. Rollinson testified at trial that she did not believe it was a woman, but when she asked again who was at the door, the voice again answered, "Tina." Ms. Rollinson then told Mr. Stover that she believed it was Defendant, an on-again, off-again boyfriend, at the door. In response, Mr. Stover told her to hide, and he got out of bed, obtained his handgun, and went to answer the door.
Ms. Rollinson testified that she heard the door open and then the sound of at least four or five gunshots, followed by footsteps running down the steps to her house. She stayed hidden until Mr. Stover told her to call 911; when she came out of the closet in the bedroom, she found Mr. Stover lying on his back in the living room, shot six times. He later died at the hospital of his injuries.
On 27 November 2006, Defendant was tried before a jury on charges for first-degree murder, first-degree burglary, and robbery with a dangerous weapon. After the jury found Defendant guilty of all charges, the trial court entered judgment on 4 December 2006 and sentenced Defendant to life in prison for the murder conviction and consecutive terms of 117 to 150 months' imprisonment each for the burglary and robbery convictions. Defendant now appeals, arguing that the trial court (I) erred by denying his motion to dismiss the charge of first-degree burglary due to insufficient evidence, and (II) committed plain error by allowing irrelevant and prejudicial testimony by a police detective as to earlier criminal charges filed against Defendant.
I.
First, Defendant argues that the trial court erred by denying his motion to dismiss the charge of first-degree burglary. Defendant specifically contends that the State presented insufficient evidence that he either "broke" or "entered" into Ms. Rollinson's house. We disagree.
To survive a motion to dismiss, the State must have presented "substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). "Substantial evidence" is "relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." Id. (citations omitted). In considering a motion to dismiss by the defense, such evidence "must be taken in the light most favorable to the state . . . [which] is entitled to all reasonable inferences that may be drawn from the evidence." State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).
The State must prove the following elements to sustain a charge of first-degree burglary: "(1) the breaking, (2) and entering, (3) in the nighttime, (4) into a dwelling house or sleeping apartment of another, (5) which is actually occupied at the time of the offense, and (6) with the intent to commit a felony therein." State v. Barnett, 113 N.C. App. 69, 74, 437 S.E.2d 711, 714 (1993); see also N.C. Gen. Stat. § 14-51 (2005). The "breaking" may be actual or constructive; the latter "occurs when entrance is obtained as a result of violence commenced or threatened by a defendant." State v. Parker, 350 N.C. 411, 425, 516 S.E.2d 106, 117 (1999) (citation omitted), cert. denied, 528U.S. 1084, 145 L. Ed. 2d 681 (2000). A constructive breaking likewise takes place where a defendant induces an occupant of the dwelling house through "fraud or trickery" to open the door. State v. Oliver, 334 N.C. 513, 529, 434 S.E.2d 202, 210 (1993); see also State v. Thomas, 350 N.C. 315, 345, 514 S.E.2d 486, 505, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999).
In the instant case, Defendant argues that the fact that Ms. Rollinson and Mr. Stover did not believe that it was "Tina" at the door and instead knew that it was Defendant contradicts the notion of a "constructive breaking" since the fraud or misrepresentation was ineffectual. We find this argument to be without merit. Regardless of what Ms. Rollinson and Mr. Stover believed, the evidence showed that Defendant did engage in trickery to induce them to open the door. As such, his actions meet the definition of "constructive breaking" applied by our courts. See, e.g., Oliver, 334 N.C. at 529, 434 S.E.2d at 210.
Additionally, the State offered testimony that Mr. Stover's body was located by the couch in the living room, which was inside the front door; shell casings were also inside the room, and forensic evidence was introduced that Mr. Stover was shot from between two and eighteen inches away. Although there was no eyewitness testimony placing Defendant inside the house, Ms. Rollinson's aunt told the jury that Defendant admitted to her that he grabbed the gun from Mr. Stover and hit him several times before shooting him. We find this evidence sufficient for the jury to conclude that Defendant entered Ms. Rollinson's home when he shot and killed Mr. Stover. See, e.g., State v. Yarborough, 55 N.C. App. 52, 56, 284 S.E.2d 550, 552 (1981) (holding that one defendant "entered" the house when he reached through the screen and threw a snake into the house, and another "entered" when he cut a screen and put his arm through the door).
Accordingly, this assignment of error is overruled.
II.
Defendant next contends that the trial court committed plain error by allowing irrelevant and prejudicial testimony by a police detective as to charges filed against Defendant related to an earlier incident for breaking and entering, assault on a female, attempted rape, and communicating a threat. We disagree.
Because Defendant failed to object to this testimony at trial, we consider its admission under the plain error rule, which is "always to be applied cautiously and only in the exceptional case where, after reviewing the entire record," the error is found to have been "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) (internal citation and quotation omitted).
At trial, Gastonia Police Detective James R. Anderson recounted an earlier incident in which Ms. Rollinson had reported to the police that Defendant had come into her home, attempted to assault her, and subsequently threatened that he would kill her and Mr. Stover if he found Mr. Stover at her home. Although warrants were issued for Defendant on charges of breaking and entering, assault on a female, attempted rape, and communicating a threat, they were not served on him until he was arrested for the murder of Mr. Stover and those related charges. Defendant contends that this testimony had no probative value and was irrelevant, as well as prejudicial and inadmissible under the North Carolina Rules of Evidence. See N.C. Gen. Stat. § 8C-1, Rule 403 (2005) (allowing relevant evidence to be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice").
We find this argument to be without merit. The earlier incident was relevant with respect to a motive for the attack for which Defendant was standing trial, and relevant evidence is generally admissible. See id., Rule 401. As our Supreme Court has noted, "[e]vidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree." State v. Hoffman, 349 N.C. 167, 184, 505 S.E.2d 80, 91 (1998) (citation and internal quotations omitted), cert. denied, 526 U.S. 1053, 143 L. Ed. 2d 522 (1999).
Moreover, even assuming arguendo it was error to allow the detective's testimony, given the overwhelming evidence against him, Defendant cannot show that, absent its admission, the jury probably would have reached a different verdict. See State v. Gardner, 315 N.C. 444, 450, 340 S.E.2d 701, 706 (1986) ("Before deciding that an error by the trial court amounts to `plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict." (citations and quotation omitted)). The jury heard from two witnesses that Defendant had confessed to the crime, as well as testimony that his voice was heard by Ms. Rollinson and her daughter immediately prior to the shooting. This assignment of error is without merit.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).