Opinion
No. COA12–1244.
2013-06-4
STATE of North Carolina v. Nathaniel Lee JOYNER.
Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State. Leslie C. Rawls for Defendant–Appellant.
Appeal by Defendant from judgment entered 23 February 2012 by Judge Kevin M. Bridges in Superior Court, Iredell County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State. Leslie C. Rawls for Defendant–Appellant.
McGEE, Judge.
Nathaniel Lee Joyner (Defendant) appeals from convictions of breaking and/or entering and larceny after breaking and/or entering and his admission that he had attained habitual felon status. We find no error.
The State's evidence tended to show that on the morning of 11 July 2010, Glenn Kurfees (Mr. Kurfees) was driving home from work when he saw a green pickup truck loaded with furniture parked beside a house located at 265 Old Mountain Road (the house) in Statesville. Mr. Kurfees knew the house at that address had belonged to the late Mrs. Pope, mother of Steven Pope (Mr. Pope). Mrs. Pope died in 2008 and no one had lived in the house since that time, though the house was still furnished. Mr. Pope lived within sight of the house and took care of the house. Mr. Kurfees, who also lived nearby, helped Mr. Pope maintain the grounds of the house. Mr. Kurfees did not recognize the loaded truck as one that belonged to Mr. Pope, so he drove to Mr. Pope's home to ask if anyone was supposed to be at the house. Mr. Pope told Mr. Kurfees he had not given anyone permission to take anything from the house. Mr. Kurfees called law enforcement and told Mr. Pope he would meet him at the house.
When Mr. Kurfees arrived back at the house, he saw Defendant walking toward the loaded pickup truck. Mr. Kurfees asked Defendant what he was doing at the house. Defendant replied that he had paid $10.00 to someone at a salvage yard to take “whatever he wanted out of the house.” Mr. Kurfees told Defendant that “Mr. Pope owned it, and there should have been nobody else selling any furniture[.]” Mr. Kurfees then told Defendant that law enforcement had been called.
Soon afterwards, Iredell County Sheriff's Deputy Richard Fearing (Deputy Fearing) and Mr. Pope arrived at the house. Mr. Pope and Deputy Fearing observed wooden furniture in the truck bed. Mr. Pope identified the furniture as furniture that belonged in the house. Mr. Pope had earlier locked the house and had not given anyone the key. However, the back door had been forced open. Defendant explained that he had given $10.00 to a man named “Robert” at a salvage yard for any items Defendant wanted out of the house. Mr. Pope told Defendant, “that was my Mom and Dad's old place, and [ ] I hadn't given anybody permission to get anything out of that house.” Mr. Pope told Deputy Fearing that “he was the only one that would give anyone permission to take stuff out of the house” and that he had not given anyone permission. Defendant did not present any evidence.
A jury found Defendant guilty of breaking and/or entering and larceny after breaking and/or entering. Defendant subsequently admitted having attained habitual felon status. The trial court sentenced Defendant to 96 to 125 months' imprisonment. Defendant appeals.
Defendant contends the trial court erred in denying his motion to dismiss the felony breaking and/or entering charge. Defendant first argues the State failed to present sufficient evidence that Defendant lacked consent of the owner.
“ ‘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 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 (quoting State v.. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “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).
To withstand a motion to dismiss on a charge of felonious breaking and/or entering, the State must have presented substantial proof that a defendant committed “(1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein.” State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992); see alsoN.C. Gen.Stat. § 14–54(a) (2011). “In order for an entry to be unlawful under N.C. Gen.Stat. § 14–54(a), the entry must be without the owner's consent.” State v. Rawlinson, 198 N.C.App. 600, 607, 679 S.E.2d 878, 882 (2009).
Viewing the evidence in the light most favorable to the State, as we are required to do, we conclude the trial court properly denied Defendant's motion to dismiss. The State presented sufficient evidence that Mr. Pope was the owner of the house. Mr. Pope testified that the house “was his Mom and Dad's old place[;]” that he was his mother's only surviving son; that he took care of the house; that he had a key to the house; and that he would be the only one who would be able to give permission for furniture to be removed from the house. Further, Mr. Kurfees testified that he told Defendant that “Mr. Pope owned [the house], and there should have been nobody else selling any furniture [.]” Contrary to Defendant's claim, the State proved Defendant lacked consent to enter the house. Deputy Fearing and Mr. Kurfees testified that Mr. Pope told them he did not give anyone permission to enter the house. Mr. Pope also testified that he did not give anyone permission to enter the house or to take anything from the house. In addition, the back door to the house showed signs of forced entry, which provides further support for a jury determination that Defendant did not have permission to enter the house. From this testimony, it is reasonable to infer that Defendant did not have the owner's consent to enter the house. This argument is without merit.
Defendant also argues the trial court erred when it denied his motion to dismiss because there was “a fatal variance between the property [the house] address on the indictment and the evidence presented at trial.” We disagree.
To preserve the issue of a fatal variance for review, a defendant must state at trial that a fatal variance is the basis for a motion to dismiss. See State v. Curry, 203 N.C.App. 375, 384–86, 692 S .E.2d 129, 137–38,appeal dismissed and disc. review denied,364 N.C. 437, 702 S.E.2d 496 (2010) (holding because “defendant failed to argue a variance between his indictment and the evidence presented at trial or even to argue generally the sufficiency of the evidence regarding the [element at issue] to the trial court, he has waived this issue for appeal.”) (citing N.C.R.App. P. 10(b)(1)).
In the case before us, although Defendant moved to dismiss the charge of breaking and/or entering, Defendant's counsel said the following: “I would argue to the Court that the State has failed to prove sufficient evidence for each element of the case to move forward.” We hold that Defendant has waived his right to appeal the fatal variance issue by failing to raise the issue at trial. See id. (citing N.C.R.App. P. 10(b)(1)). Defendant acknowledges he did not raise the variance issue at trial and asks this Court to invoke N.C.R.App. P. 2 to review the issue.
We decline to do so. Accordingly, the trial court properly denied Defendant's motion to dismiss the breaking and/or entering charge for insufficiency of the evidence.
Finally, Defendant contends his plea to habitual felon status must be vacated because his underlying felony must be vacated. However, because we find no error in the underlying felony convictions, Defendant's argument is without merit and Defendant's plea to the habitual felon status stands.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).