Opinion
NO. COA12-75
10-16-2012
STATE OF NORTH CAROLINA v. JAMES CALVIN BOYD
Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State. Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Scotland County
Nos. 09 CRS 053274, 10 CRS
000439, 11 CRS 000224
Appeal by defendant from judgment entered 25 July 2011 by Judge Gregory Bell in Scotland County Superior Court. Heard in the Court of Appeals 12 September 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.
CALABRIA, Judge.
James Calvin Boyd ("defendant") appeals from a judgment entered upon jury verdicts finding him guilty of first-degree burglary, assault with a deadly weapon ("AWDW") and violation of a domestic violence protective order ("DVPO") with a deadly weapon. We find no error.
Defendant and Alvina Whitted Boyd ("Alvina") were married in September 1995 and lived together in Laurinburg, North Carolina. The couple separated in the spring of 2009 due to defendant's physical and verbal abuse. Although Alvina lived in the marital home and defendant in another residence, in July 2009, he returned to Laurinburg and temporarily stayed in Alvina's residence while settling some business and legal matters. However, after defendant physically assaulted Alvina in the presence of her granddaughter, Alvina left Laurinburg and traveled to Washington, D.C. to visit her family.
When Alvina returned to North Carolina on 6 September 2009 she found defendant asleep in her bed and attempted to sleep in another room. Defendant entered the room where Alvina was sleeping, started calling her names and yelling at her, then threatened to kill her. Defendant also attempted to have sexual intercourse with Alvina by ripping her shirt from her body, pinning her on the bed and smothering her with a pillow. At some point, Alvina passed out. Subsequently, on 9 October 2009, after a hearing in the presence of both parties, the trial court entered a DVPO that was effective until 9 October 2010.
One of the conditions of the DVPO was that defendant had to be accompanied by the Laurinburg Police Department ("LPD") whenever he returned to Alvina's home to collect his belongings. Defendant complied with this condition, however after one of his visits, Alvina noticed several windows in her home were unlocked. She reported the incident to LPD and contacted her brother, Anthony Whitted ("Whitted"), who then moved into her home with her.
On 21 October 2009, between 3 and 4 a.m., Alvina and Whitted were awakened by loud banging noises. They entered the foyer, saw defendant striking the door and heard him threatening to "kill the bitch" and "kill ya'll." Whitted attempted to calm defendant but defendant continued beating on the door. When defendant was unsuccessful in his attempt to enter the home through the door, he entered through a window. Both Whitted and Alvina retreated to another portion of the house and closed the door to the hallway. Alvina hid in the bathroom that adjoined her bedroom, called 911 with Whitted's cellular phone and LPD was dispatched.
Whitted remained at the hallway door and again attempted to talk to defendant, but defendant kept reiterating that he was "going to kill" them. Defendant repeatedly struck and cracked the hallway doorjamb, causing the door to open and Whitted to retreat to the bathroom at the end of the hall. Next, defendant repeatedly struck the bathroom door with an ax and injured Whitted. When Whitted told defendant that law enforcement were on their way, defendant also struck Alvina's bedroom door with the ax until he could enter. Alvina was still in the bathroom but heard defendant in her room. After defendant took Alvina's purse and keys, he left the house.
When LPD arrived, they questioned Alvina and Whitted, and then attempted to locate defendant. Prior to his arrest, defendant contacted Captain Kimothy Monroe ("Captain Monroe") and Chief of Police John Evans from LPD and was subsequently apprehended in Wake County on 26 October 2009. After defendant's arrest, Captain Monroe and two detectives transported him back to Laurinburg. During the drive, defendant stated to Captain Monroe that he was not "going to do anything to [Alvina] or her brother[.]" He added that he "went into the house to get [his] keys[,]" and "hit four different doors before [he] found the purse[.]" Once he located Alvina's purse he took his "keys to the truck out and a car - and a car [he] was working on ... [and] threw the bag on the side of the highway on the way to [his] brother's house."
Defendant was charged with first-degree burglary, AWDW with intent to kill, violation of a 50B DVPO while in possession of a deadly weapon, felony larceny and attempted AWDW with intent to kill. Defendant's indictment for first-degree burglary stated that, at the time of the breaking and entering, he had the intent to commit the felonies of AWDW with intent to kill and felony larceny.
At trial in Scotland County Superior Court, the jury returned verdicts finding defendant guilty of first-degree burglary, AWDW, violation of a DVPO with a deadly weapon, felony larceny and attempted AWDW with intent to kill. The trial court arrested judgment on the felony larceny and attempted AWDW with intent to kill charges. The trial court consolidated judgment for first-degree burglary, AWDW and violation of a DVPO with a deadly weapon and sentenced defendant to a minimum of 110 and a maximum of 141 months in the North Carolina Department of Correction. Defendant appeals.
Although defendant was sentenced for first-degree burglary, AWDW and violation of a 50B DVPO with a deadly weapon, defendant's argument focuses on the instruction for first-degree burglary. Specifically, he contends that the trial court erred by failing to submit to the jury the instruction for the lesser-included offense of misdemeanor breaking and entering, and therefore he was deprived of his state and federal constitutional rights to due process of law. We disagree.
As an initial matter, defendant did not submit a request for an instruction on misdemeanor breaking and entering. Even in cases where the defendant fails to request an instruction on a lesser-included offense, the trial court "must instruct the jury on all lesser included offenses that are supported by the evidence ... and ... the failure to do so is reversible error which is not cured by a verdict finding the defendant guilty of the greater offense." State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995). However, "[a]n instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater." State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002).
First-degree burglary is breaking and entering the occupied dwelling house of another at night "with the intent to commit a felony therein." State v. Clagon, 207 N.C. App. 346, 350, 700 S.E.2d 89, 92 (2010). Misdemeanor breaking or entering, a lesser-included offense of burglary, does not require intent to commit a felony within the dwelling. State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985). "The intent to commit the felony must be present at the time of entrance, and this can but need not be inferred from the defendant's subsequent actions." Montgomery, 341 N.C. at 566, 461 S.E.2d at 739. "The lesser included offense of misdemeanor breaking and entering must be submitted to the jury if there is substantial evidence that the defendant broke and entered for some non-felonious reason other than that alleged in the indictment." State v. Owen, 111 N.C. App. 300, 309, 432 S.E.2d 378, 384 (1993).
Defendant relies on Owen because the defendant in Owen also appealed his first-degree burglary judgment. However, unlike defendant, in Owen the defendant's indictment for the burglary alleged that at the time the defendant broke and entered the premises, his intent was to commit larceny. Id. at 302, 432 S.E.2d at 380. At trial, the defendant in Owen presented evidence that he did not have the intent to commit larceny but instead that he broke and entered the premises specifically to retrieve his shotgun. Id. at 304, 432 S.E.2d at 381. This evidence was corroborated by the defendant's post-arrest statement that upon his entrance to the premises, he requested that the victims return his shotgun. Id. at 309, 432 S.E.2d at 385. This Court rejected the State's argument that there was "uncontradicted" evidence regarding defendant's intent to commit larceny when he entered the premises and also cited in its opinion "the felonious intent proven must be the intent alleged in the indictment." Id. at 309-10, 432 S.E.2d at 384-85. This Court held that the defendant deserved a new trial because the trial court erred by failing to instruct on the lesser-included offense of misdemeanor breaking and entering. Id. at 310, 432 S.E.2d at 385. The defendant's burglary indictment alleged that his intention was to commit larceny. Id. at 309, 432 S.E.2d at 384-85. However, the evidence at trial showed that his true intention was to retrieve a shotgun that he owned. Id. at 309-10, 432 S.E.2d at 385.
Owen is distinguishable from the instant case. In the instant case, defendant was indicted for first-degree burglary. According to the allegations in defendant's indictment, he intended to commit the felonies of AWDW with intent to kill and larceny. At trial, the State presented evidence that defendant arrived at Alvina's home between 3 a.m. and 4 a.m. on 21 October 2009, only twelve days after a valid DVPO had been entered prohibiting him from having any contact with Alvina. To gain entry into the home, defendant used an ax. Once inside, defendant also used the ax to break down doors to the hallway, a bathroom and Alvina's bedroom. While using the ax, defendant injured Whitted. From the time defendant entered the house, he consistently stated that he was going to kill Alvina and Whitted. Prior to leaving, defendant took Alvina's purse and keys. Unlike the defendant in Owen, who requested that the victims return his shotgun upon his arrival and the evidence at trial supported his request, here defendant never communicated to Alvina and Whitted that his intent was to obtain his keys. Rather, he repeatedly stated that he was going to kill them while brandishing an ax and repeatedly hitting doors with the ax knowing that Whitted was located behind the doors. Defendant's actions and the evidence at trial support an inference that defendant intended to commit AWDW with intent to kill. Furthermore, the fact that defendant ultimately took Alvina's purse and keys also supports an inference that he intended to commit felony larceny when he entered the house. Based on this evidence, we find that the State presented sufficient evidence to support a jury instruction for first-degree burglary since defendant broke and entered Alvina's house, while it was occupied, at night with the intent to commit the felonies of AWDW with intent to kill and larceny.
Defendant argues that his post-arrest statement to Captain Monroe indicated the possibility that he had an alternative, non-felonious motive for entering the house because he stated that he did not enter the house intending to hurt Alvina and Whitted. He claimed his purpose for going to Alvina's house was to retrieve his keys, which is a non-felonious motive. However, we do not find that defendant's post-arrest statement would have allowed a jury, if instructed on the lesser-included offense, to rationally find from the evidence that defendant was guilty of the lesser offense of misdemeanor breaking and entering and should have been acquitted of the greater offense. Millsaps, 356 N.C. at 561, 572 S.E.2d at 771. Therefore, the trial court did not err in only submitting an instruction for first-degree burglary and not submitting one for the lesser-included offense of misdemeanor breaking and entering to the jury. We find no error.
No error.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).