Opinion
No. COA10-1109
Filed 7 June 2011 This case not for publication
Appeal by Defendant from judgment entered 30 April 2010 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Seth P. Rosebrock, for the State. Guy J. Loranger, for Defendant.
Mecklenburg County No. 08 CRS 232500.
James Sherrod Wells (Defendant) appeals from judgment entered upon his conviction for felonious breaking or entering and raises the sole issue of whether the trial court committed plain error by failing to instruct the jury on the lesser-included offense of first-degree trespass. We find no error.
On the evening of 10 July 2008, Timothy Reed, a custodian at South Mecklenburg High School, discovered Defendant in a utility closet in Building H of the school. Defendant was using a hacksaw to cut a pipe. Building H was slated for demolition and was surrounded by a tall chain link fence.
Mr. Reed testified that he had not seen Defendant before, and he related that when he asked Defendant why he was there, Defendant told him "a brother got to do what a brother got to do," that "[h]e got to make a little money." Mr. Reed left Defendant in the building and went outside to call his supervisor, Caldwell Cole, Jr. to tell him that a man was removing copper pipes and/or wire from Building H. Mr. Cole called the police.
Approximately five to ten minutes later, Officers Joan Furr and Ken Adams arrived in response to a call regarding a commercial breaking and entering in progress at the high school. When they arrived, Officer Adams heard a banging noise coming from inside Building H. He climbed over the fence and entered the building. The officer found Defendant banging on metal piping inside a utility closet with a five-pound sledgehammer. Defendant told the officer that he "was getting some of the metal out of there[,]" and that he had permission from one of the workers to be there. They went outside, and Defendant indicated Mr. Reed as the person who gave Defendant permission to be there. Mr. Reed denied having told Defendant anything and said that Defendant was not authorized to be there.
Defendant was arrested and placed in investigative detention. A hacksaw, flashlight, roll of duct tape, and safety glasses were collected from Defendant, but not the sledgehammer. Defendant admitted that "[h]e wasn't supposed to be there and he wasn't supposed to take anything for himself."
Defendant testified that on 10 July 2008, he was cutting across the school grounds on his way home from work. He testified that several officers detained him and frisked him. He stated they picked up tools from nearby, including a flashlight, hacksaw, and sledgehammer, and asked Defendant if they were his. He denied it, and noted that he only had a wallet on his person. Defendant related that he heard Officer Furr say, "I'm going to get him on something." Defendant testified that the officers squeezed him through the fence which separated part of Building H from heavy equipment in the parking lot. He stated Officer Furr took him back to her car, flipped through a citation book and said "I can get him for this right here, breaking and entering with or without force."
Defendant admitted that he had never talked to Mr. Reed prior to the incident in question. He acknowledged being at the school, but denied breaking or entering, taking anything, or trying to take anything.
Felicia Wells, Defendant's wife, also testified on Defendant's behalf. Although she was not at the scene when Defendant was arrested, she presented pictures that she took of Building H the day after Defendant was arrested. She wanted to show that "the place was open" with no doors or windows, that there were "no closed-in walls, no buildings that they took [defendant] out of[,]" and that Defendant could not have committed breaking and entering.
On rebuttal, Officers Furr and Adams and Mr. Reed reaffirmed the truth of their testimony. Each agreed that the pictures presented by Mrs. Wells either had not been taken the day after the arrest or did not accurately reflect the scene of the crime on the day in question.
The jury returned a verdict of guilty of felonious breaking or entering. The trial court determined Defendant to be a prior record level III based on eight prior record level points, and sentenced Defendant to a suspended sentence of ten to twelve months. The court ordered Defendant to serve an active term of sixty days and placed Defendant on supervised probation for twenty-four months. From the judgment entered, Defendant appeals.
Defendant argues that the trial court erred by failing to give a jury instruction on the lesser included offense of first-degree trespass. Since Defendant did not request the instruction, we review the matter for plain error. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). "Plain error" does not connote simply "obvious or apparent error." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). "Under the plain error standard of review, [D]efendant has the burden of showing: `(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.'" State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). We "must examine the entire record and determine if the . . . error had a probable impact on the jury's finding of guilt." State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 252 (2004) (internal quotation marks omitted).
Defendant was convicted of felonious breaking or entering. The essential elements of this offense are: "(1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein." State v. Mitchell, 109 N.C. App. 222, 224, 426 S.E.2d 443, 444 (1993). "`Larceny consists of (i) the wrongful taking and carrying away, (ii) of the personal property of another, (iii) without his consent, and (iv) with the intent to deprive permanently the owner thereof.'" Id. (citation omitted).
First-degree trespass, a Class 2 misdemeanor, is a lesser included offense of felonious breaking or entering. N.C. Gen. Stat. § 14-159.14 (2009). A person may be found guilty of first-degree trespass "if, without authorization, [a person] enters or remains: (1) On premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders; or (2) In a building of another." N.C. Gen. Stat. § 14-159.12(a) (2009).
Defendant contends the evidence presented regarding his intent to commit a larceny was merely circumstantial and therefore, a jury could have rationally found him guilty of first-degree trespass rather than felonious breaking or entering. He asserts that the trial court's failure to give an instruction on the lesser included offense deprived him of a fair trial, which amounts to a miscarriage of justice and constitutes plain error. We do not agree.
Generally, "`a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternative verdicts.'" State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (quoting State v. Palmer, 293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977)). However, "[w]here the State's evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required." Millsaps, 356 N.C. at 562, 572 S.E.2d at 772 (citing State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985)).
Here, the State presented clear and positive evidence as to each element of felonious breaking or entering. Defendant was found inside a building on the grounds of the high school, he did not have permission to be there, he was seen hammering and sawing on metal pipes inside the building, and a hacksaw was confiscated from him when he was arrested. Further, Defendant told Mr. Reed that he was trying "to make a little money," and he told Officer Adams that he was trying to take some metal out of the building. Since the evidence is sufficient to show that Defendant entered the building with the intent to take property not his own out of the building, the trial court's failure to instruct the jury on the lesser included offense of first-degree trespass does not constitute error, much less plain error. Defendant's argument has no merit.
No error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).