Opinion
No. COA09-655
January 5, 2010.
Cabarrus County Nos. 08 CRS 51481, 7288.
Appeal by Defendant from judgment entered 14 January 2009 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County. Heard in the Court of Appeals 15 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General Lisa G. Corbett, for the State. Winifred H. Dillon for Defendant-Appellant.
Kimberly Shawn Baker (Defendant) appeals from judgment consistent with a jury verdict finding her guilty of felonious breaking and entering, and to her pleading guilty to attaining habitual felon status. We find no error.
The State's evidence at trial showed that on two occasions Defendant went to the Goodman Circle neighborhood (the neighborhood), located off Interstate 85 in Concord. The intersection before entering the neighborhood has gas stations and fast food restaurants, with restrooms open to the public. On Defendant's first visit to the neighborhood, she went to several houses, including the houses of Nancy Hagler (Hagler) and Jody Shepard (Shepard). Defendant asked Hagler for twenty dollars and also asked to use the bathroom. Defendant asked Shepard for money because Defendant's daughter was stranded in Greensboro and her father had Alzheimer's disease. A month later, on 1 May 2008, Defendant returned to the neighborhood. Defendant again rang Hagler's doorbell. When Hagler opened the door, Defendant asked for money and to use the bathroom. Hagler refused to give Defendant money. Upon further questioning, Hagler discovered that Defendant was acquainted with a friend of Shepard's father-in-law's wife. Hagler told Defendant that the Shepard family lived diagonally across the street. Hagler watched as Defendant approached the Shepard front door, stand there for a while, and enter the Shepard home. Hagler then saw Shepard drive up and jump out of his car "in a big hurry."
Shepard had returned home after picking up his granddaughter. When Shepard pulled up to his home, he noticed an unknown vehicle parked in his driveway and Defendant, whom he did not know, bent over at Shepard's locked front door. Shepard then saw Defendant enter his house through his front door. Shepard had not given anyone, other than his family, permission to enter his home. Shepard told his granddaughter to remain in his vehicle and immediately followed Defendant inside his home. Upon entering his home, Shepard did not see or hear Defendant. Shepard picked up an unloaded shotgun from beside his front door and racked it, which made a loud noise. Shepard warned Defendant that he had a weapon and told her to come out. Defendant stepped out of the master bedroom into the hallway and stood about ten feet in front of Shepard. Shepard estimated that Defendant was in the house for no more than twenty seconds before he confronted her.
While he continued to hold the shotgun on Defendant, Shepard called 911. Defendant pleaded with Shepard not to call the police, saying that she would go to jail for seven years if she were arrested. When Shepard turned around to check on his granddaughter, who was still in his car, Defendant pushed by him and ran out the door. Shepard put the gun down and followed Defendant. Defendant got into her vehicle, which was parked in Shepard's driveway, drove across Shepard's front yard, and wrecked in a drainage ditch. Shortly thereafter, officers with the Concord Police Department arrived and arrested Defendant on a charge of felony breaking and entering. Defendant moved to dismiss the charge against her and the trial court denied the motion.
Defendant did not present any evidence and renewed her motion to dismiss, which the trial court denied. The trial court instructed the jury on felonious breaking and entering with the intent to commit larceny therein and misdemeanor breaking and entering. The jury found Defendant guilty of felonious breaking and entering. Defendant subsequently pled guilty to having attained habitual felon status. The trial court sentenced Defendant to 90 to 117 months in prison. Defendant appeals.
Defendant assigns plain error to the trial court's jury instruction on felonious breaking and entering with intent to commit larceny. Defendant did not object at trial to the instructions given, thus waiving the issue on appeal. N.C.R. App. P. Rule 10(b)(2). Defendant contends that the lack of an instruction defining larceny constituted "plain error." State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).
The trial court instructed the jury on felony breaking and entering as follows:
So if you find from the evidence beyond a reasonable doubt that on or about the alleged date . . . [D]efendant broke into or entered a building without the consent of the owner intending at that time to commit larceny it would be your duty to return a verdict of guilty of felonious breaking or entering.
Defendant argues the trial court erred by failing to define the term "larceny" because it "is a legal term, not always susceptible to understanding by the layperson." The State argues that although "larceny" is an essential element of felony breaking and entering with intent to commit larceny, failing to define "larceny" does not constitute error because the word is generally understood by the public. We agree.
In State v. Chambers, 52 N.C. App. 713, 720-21, 280 S.E.2d 175, 179-80 (1981), the defendant asserted on appeal that the trial judge committed prejudicial error in failing to properly and completely instruct the jury on the elements of felonious breaking or entering and, in particular, the trial judge failed to fully define the term "larceny." This Court held that the trial court did not err by failing to define larceny to the jury because the term "is becoming all too familiar to the general public." Id. at 721, 280 S.E.2d at 180; see also State v. Simpson, 299 N.C. 377, 383-84, 261 S.E.2d 661, 665 (1980) (holding that the trial court did not err by simply stating "larceny" in its instruction to the jury for the charge of burglary because the word "larceny," as it is understood by the general public, is sufficient to explain the requisite felonious intent required for burglary). Assuming arguendo that the trial court's failure to define larceny constituted prejudicial error, we do not find that it amounted to "plain error" so as to entitle Defendant in this case to a new trial.
Plain error arises when the error is "`so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" Odom, 307 N.C. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)). Defendant, therefore, "must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
In reviewing the record, we do not believe the trial court's failure to define larceny had a probable impact on the jury's finding Defendant guilty of felony breaking and entering. Before entering the Shepard house, Defendant had been begging for money at the Hagler house, which is across the street from the Shepard house; Hagler refused to give Defendant money and Defendant proceeded to the Shepard house; Defendant entered the locked Shepard house without permission; Shepard immediately ran into his house after Defendant entered and did not see or hear Defendant; when Shepard warned Defendant that he had a shotgun, Defendant stepped out of the doorway of the master bedroom into the hallway; Defendant pleaded with Shepard not to call the police because she would be sent to jail; and Defendant pushed passed Shepard and attempted to flee in her vehicle. Upon these facts, we do not think the trial court's failure to define larceny probably had an effect on the jury's verdict. Accordingly, the trial court did not commit plain error by failing to define larceny in its felony breaking and entering instruction.
Defendant also contends the trial court erred by denying her motion to dismiss based on insufficiency of the evidence. Defendant asserts the State did not present sufficient evidence of Defendant's requisite intent to commit larceny. We disagree.
The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that Defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994) (citation omitted). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
"The essential elements of felonious breaking or entering are (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) (citation omitted); N.C. Gen. Stat. § 14-54(a) (2007). "Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred." State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974). "Without other explanation for breaking into the building or a showing of the owner's consent, intent may be inferred from the circumstances." State v. Myrick, 306 N.C. 110, 115, 291 S.E.2d 577, 580 (1982).
In the case before us, Shepard testified that he did not give Defendant permission to be in his locked house and Defendant gave no explanation for being there. In fact, Defendant pleaded with Shepard not to call the police because she would go to jail if arrested. Further, as noted above, Defendant had been begging for money, she was in Shepard's master bedroom when Shepard told her he was armed, and she attempted to flee the scene. Viewing the evidence in the light most favorable to the State, we hold there was substantial evidence from which the jury could infer Defendant's intent to commit larceny in Shepard's house. Accordingly, the trial court properly denied Defendant's motion to dismiss the charge of felonious breaking and entering.
No error.
Judges GEER and HUNTER, JR. concur.
Report per Rule 30(e).