Opinion
No. COA10-1452
Filed 2 August 2011 This case not for publication
Appeal by defendant from judgments entered 28 July 2010 by Judge Richard Doughton in Pender County Superior Court. Heard in the Court of Appeals 14 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Robert D. Croom, for the State Richard Croutharmel, for Defendant.
Pender County No. 09 CRS 53226.
Defendant Emory Rashad Carr appeals from judgments sentencing him to a term of 120 days imprisonment based on his conviction for misdemeanor breaking or entering and a term of 150 days imprisonment based on his conviction for violating a Domestic Violence Protection Order (DVPO), with these sentences to be served consecutively in the custody of the North Carolina Department of Correction. On appeal, Defendant contends that the trial court erred by denying his motions to dismiss the breaking or entering and DVPO violation charges that had been lodged against him on the grounds that the evidence was not sufficient to support a finding that Defendant was guilty of either offense. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that no error of law occurred in the proceedings leading to the entry of the trial court's judgments and that Defendant is not entitled to any relief from these judgments on appeal.
I. Factual Background A. Substantive Facts
Defendant and Sarah Goehle are the parents of a child born on 11 February 2009. On 20 July 2009, Ms. Goehle sought and obtained a DVPO under which Defendant was required to refrain from having any contact with Ms. Goehle.
The DVPO, which remained in effect until 20 July 2010, specifically provided that Defendant had to "stay away from [Ms. Goehle's] residence or any place where [she] receives temporary shelter."
In spite of the fact that the DVPO remained in effect, Defendant and Ms. Goehle resumed their romantic relationship at some point after the issuance of that order. Following their reconciliation, the couple spent nights together at either Defendant's or Ms. Goehle's home. However, Defendant and Ms. Goehle did not move in together and continued to maintain separate residences. At trial, Ms. Goehle claimed that she provided Defendant with a key to her apartment at the time of their reconciliation and that she had neither taken the key back from Defendant nor changed the locks on the door to her home as of the date of the incident that led to Defendant's convictions.
In late 2009, the couple began arguing again and decided to "t[ake] a break." Shortly thereafter, Ms. Goehle informed Defendant that "[i]t[ was] over[.]" At the time of this conversation, Ms. Goehle clearly told Defendant that she was breaking up with him and that her decision to do so was "final." In her trial testimony, however, Ms. Goehle claimed that she and Defendant had subsequently "resolved everything," that she and Defendant resumed their romantic relationship in 2010, and that Defendant was "[m]ore than likely" the father of the child with whom she was pregnant at the time of trial. Although they were no longer romantically involved at the time of Defendant's trial, Ms. Goehle claimed that she and Defendant remained on good terms.
On the morning of 7 December 2009, Ms. Goehle returned to her residence after spending several nights at the home of her friend, Mary Fontana. At that time, Ms. Goehle was accompanied by Ms. Fontana and another friend, Dave Meyer, who had agreed to help Ms. Goehle clean her residence in preparation for an inspection scheduled for the following day. Although Ms. Goehle insisted during her trial testimony that she was not afraid of Defendant, Ms. Fontana testified that, in addition to helping Ms. Goehle prepare her residence for the impending inspection, Ms. Fontana and Mr. Meyers accompanied Ms. Goehle on that occasion because Ms. Goehle "didn't want to go by herself because she was scared of [Defendant]." At any rate, as Ms. Goehle, Ms. Fontana, and Mr. Meyer were standing at the entrance to Ms. Goehle's residence, the front door opened and Defendant emerged from the residence.
The evidence presented at trial concerning the condition of the door to Ms. Goehle's residence was conflicting. On the one hand, Ms. Fontana and Mr. Meyer testified that the door showed signs of forced entry. Similarly, Ms. Goehle told investigating officers on the date of the underlying incident that she "noticed [that] the lock was messed [] with" when she arrived at her home that morning. At trial, however, Ms. Goehle insinuated that the damage to the door mentioned in her conversation with the investigating officers was preexisting.
Upon catching sight of Defendant, Ms. Goehle walked away from her residence, went down a series of steps, and continued moving towards her car with Defendant in pursuit. After calling 911, Ms. Goehle briefly left the scene with Ms. Fontana and Mr. Meyer, returning after law enforcement officers arrived. Upon entering her residence, Ms. Goehle discovered that several insulin syringes and various household items were missing.
B. Procedural History
On 7 December 2009, a warrant for arrest charging Defendant with felonious breaking or entering and felonious larceny was issued. On 24 May 2010, the Pender County grand jury returned a bill of indictment charging Defendant with felonious breaking or entering, felonious larceny, and violating the DVPO. The cases against Defendant came on for trial before the trial court and a jury at the 26 July 2010 criminal session of the Pender County Superior Court. As a result of Ms. Goehle's admission that she did not wish to testify against Defendant, the trial court allowed the State to question her as a hostile witness. At the conclusion of the State's case-in-chief, Defendant declined to offer evidence and unsuccessfully sought dismissal of the charges that had been lodged against him on the grounds that the evidence was insufficient to support a conviction.
On 28 July 2010, the jury returned verdicts finding Defendant guilty of misdemeanor breaking or entering and violating the DVPO and acquitting him of felonious larceny. At the ensuing sentencing hearing, the trial court found that Defendant had seven prior convictions and should be sentenced as a Level III offender. Based upon these determinations, the trial court sentenced Defendant to a term of 120 days imprisonment based upon his conviction for misdemeanor breaking or entering and to a term of 150 days imprisonment based upon his conviction for violating the DVPO, with these sentences to be served consecutively in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
On appeal, Defendant contends that the trial court erred by denying his motion to dismiss the breaking or entering and DVPO violation charges on the grounds that the evidence did not suffice to support his conviction for either offense. We do not find Defendant's arguments persuasive.
A. Standard of Review
When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. If substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
State v. Williams, 363 N.C. 689, 705-06, 686 S.E.2d 493, 505 (2009) (internal citations and quotation marks omitted), cert. denied, ___ U.S. ___, 178 L. Ed. 2d 90, 131 S. Ct. 149 (2010).
[If] the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. However, so long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also permits a reasonable inference of the defendant's innocence.
State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (internal citations and quotation marks omitted). "Finally, `contradictions and discrepancies do not warrant dismissal of the case[, and are matters] for the jury to resolve.'" State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (quoting State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982)). We review the trial court's denial of Defendant's motions to dismiss for insufficient evidence de novo. State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008) (citing State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007)).
B. Sufficiency of the Evidence 1. Breaking or Entering
In challenging his breaking or entering conviction, Defendant argues that the State failed to present sufficient evidence tending to show that he entered Ms. Goehle's residence without her consent or without a good faith belief that he had her consent. We disagree.
A conviction for committing misdemeanor breaking or entering in violation of N.C. Gen. Stat. § 14-54(b) requires "proof of wrongful breaking or entry into any building." State v. Rushing, 61 N.C. App. 62, 67, 300 S.E.2d 445, 450, aff'd per curiam, 308 N.C. 804, 303 S.E.2d 822 (1983). As a result, in order to establish Defendant's guilt of misdemeanor breaking or entering, the State must have "present[ed] evidence that defendant entered a building within the meaning of [N.C. Gen. Stat. § ] 14-54(b) and that he did so wrongfully, that is, that he entered without any consent or permission of the owner or occupant." State v. Winston, 45 N.C. App. 99, 101, 262 S.E.2d 331, 333 (1980) (citing State v. Boone, 39 N.C. App. 218, 249 S.E.2d 817 (1978), modified and aff'd, 297 N.C. 652, 256 S.E.2d 683 (1979)); see also State v. Boone, 297 N.C. 652, 659, 256 S.E.2d 683, 687 (1979) (explaining that, even though the absence of consent is not an element of the offense of breaking or entering, "an entry with consent of the owner of a building, or anyone empowered to give effective consent to entry, cannot be the basis of a conviction for [breaking or entering]").
A review of the record developed at trial when taken in the light most favorable to the State shows that the State presented sufficient evidence to support the trial court's decision to deny Defendant's dismissal motion. In State v. Thompson, 59 N.C. App. 425, 427, 297 S.E.2d 177, 179 (1982), disc. review denied, 307 N.C. 582, 299 S.E.2d 650 (1983), the defendants challenged their convictions in reliance on the same basic logic advanced by Defendant in this case, arguing that the State's "evidence was insufficient to support the convictions of [] breaking or entering, since it failed to establish that their accomplice, the victims' daughter, entered without the consent of her parents." In rejecting the Thompson defendants' argument, we noted that:
[T]he victims' testimony that their daughter was welcome to come home at any time merely created contradictions and discrepancies . . . for the jury to resolve. The further testimony that the outside key had been removed to prevent the daughter from breaking in again, and that the daughter was not welcome when the key was removed, considered in the light most favorable to the State, clearly indicated the victims' lack of consent to their daughter's entry in their absence without an express grant of permission. This contention thus is without merit.
Id. (internal citations and quotation marks omitted). The fact that Defendant, unlike the victims' daughter in Thompson, possessed a key to Ms. Goehle's residence is not determinative with respect to the consent issue. Having the ability to enter the residence of another, even through the use of a key, is not tantamount to consent. As each of us knows from the events of everyday life, keys are often given to neighbors for use in the event of an emergency or left under the doormat so as to be available for use by a frequent visitor. The fact that keys are available under such circumstances does not mean that the homeowner or resident has granted unlimited permission to anyone with access to such a key to enter at any time and under any set of circumstances. As a result, we must look to the conduct of the parties in order to determine the extent, if any, to which Defendant had permission to enter Ms. Goehle's residence on 7 December 2009.
In spite of the fact that Ms. Goehle was obviously trying to minimize Defendant's culpability during her trial testimony, she never asserted that Defendant had unlimited permission to enter her residence regardless of the time of day or other surrounding circumstances. On the contrary, Ms. Goehle stated on more than one occasion during her trial testimony that she did not, in fact, consent to Defendant's presence in her residence on 7 December 2009. Among other things, Ms. Goehle testified that she "didn't want [Defendant] there" and that Defendant was "not welcome in [her] apartment on December 7th." As a result, the record contains ample evidence tending to show that Defendant did not have actual consent to enter Ms. Goehle's residence on the date in question.
Defendant contends that, regardless of whether he had actual consent to enter Ms. Goehle's residence on 7 December 2009, the State failed to establish that he lacked a "good faith belief" that his entry into Ms. Goehle's residence was consensual. State v. Tolley, 30 N.C. App. 213, 215, 226 S.E.2d 672, 674 (stating that "[a] person entering a residence with the good faith belief that he has the consent of the owner . . . is not chargeable with the offense of breaking and entering"), disc. review denied, 291 N.C. 178, 229 S.E.2d 691 (1976). The record evidence is, however, sufficient to support a finding that Defendant did not have a "good faith belief" that he had consent to enter Ms. Goehle's residence on the occasion in question. According to Ms. Goehle, Defendant "probably" knew that he was not welcome in her home on 7 December 2009. After all, the evidence tends to show that Ms. Goehle had recently broken up with Defendant and had informed Defendant that she had finally decided that their relationship was "over." The testimony of Ms. Fontana and Mr. Meyer to the effect that the door to Ms. Goehle's residence showed signs of forced entry at the time of their arrival on 7 December 2009 provides further support for a jury determination that Defendant did not have a "good faith belief" that he had permission to enter Ms. Goehle's home on that date. As a result, the record contains more than sufficient evidence to support a finding that Ms. Goehle had not consented to Defendant's entry into her residence on 7 December 2009 and that Defendant lacked a "good faith belief" that such consent existed when he did so. Thus, the trial court did not err by denying Defendant's motion to dismiss the breaking or entering charge for insufficiency of the evidence.
2. Violation of DVPO
Secondly, Defendant contends that the trial court erred by denying his motion to dismiss the DVPO violation charge based upon the State's failure to present sufficient evidence establishing that Defendant "violated a [DVPO] by breaking into [Ms. Goehle's] apartment." Defendant's challenge to the sufficiency of the evidence to support his conviction for violating the DVPO lacks merit as well.
The indictment charging Defendant with violating the DVPO alleges that Defendant "violated a [DVPO] issued by District Court Judge Melinda Crouch on [20 July 2009] by breaking into the victim's apartment." Defendant's challenge to the sufficiency of the evidence to support a finding that he violated the DVPO appears to rest on two different arguments. First, Defendant contends that he entered Ms. Goehle's apartment with Ms. Goehle's consent or with a good faith belief that his entry was consensual. Having already found this argument to lack merit in connection with our discussion of the sufficiency of the evidence to support Defendant's misdemeanor breaking or entering conviction, we need not address this contention in any detail in connection with his challenge to the sufficiency of the evidence to support his conviction for violating the DVPO. Alternatively, Defendant suggests that the State's failure to present sufficient evidence to show that he entered Ms. Goehle's residence by force compels the conclusion that "the State failed to prove Defendant broke into Goehle's apartment on 7 December 2009 as alleged in the [indictment]." As we understand Defendant's argument, he appears to claim, without citing any authority in support of his contention, that a finding that Defendant entered Ms. Goehle's apartment by unlocking the door with the key in his possession establishes that he did not "break" into her residence. Aside from the fact that the testimony of Ms. Fontana and Mr. Meyer to the effect that the door to Ms. Goehle's residence showed signs of forced entry, we note that:
[t]o show a breaking it is not required that the State offer evidence of damage to a door or window, it being sufficient to show a mere pushing or pulling open of an unlocked door or the raising or lowering of an unlocked window, State v. McAfee, 247 N.C. 98, 100 S.E.2d 249 (1957), or the opening of a locked door with a key. State v. Knight, 261 N.C. 17, 134 S.E.2d 101 (1964).
State v. Tippett, 270 N.C. 588, 594, 155 S.E.2d 269, 273 (1967). As a result, in the absence of either actual consent or a good faith belief that such consent existed, Defendant's entry into Ms. Goehle's residence, regardless of whether that entry was effectuated using force or a key, constituted a sufficient breaking to permit the jury to convict him of violating the DVPO. Thus, the trial court did not err by denying Defendant's motion to dismiss the DVPO violation charge.
III. Conclusion
For the reasons set forth above, we conclude that Defendant received a fair trial, free from prejudicial error, and that neither of Defendant's challenges to the trial court's judgments have merit. As a result, Defendant is not entitled to any relief from the trial court's judgments on appeal.
NO ERROR.
Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).