Opinion
No. COA12–1337.
2013-06-18
STATE of North Carolina v. Clifton Earl WILLIAMS, Defendant.
Roy Cooper, Attorney General, by Creecy Johnson, Assistant Attorney General, for the State. Kimberly P. Hoppin for defendant-appellant.
Appeal by defendant from judgments entered 7 June 2012 by Judge Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals 12 March 2013. Roy Cooper, Attorney General, by Creecy Johnson, Assistant Attorney General, for the State. Kimberly P. Hoppin for defendant-appellant.
DAVIS, Judge.
Defendant Clifton Earl Williams (“defendant”) appeals from his convictions for assault with a deadly weapon with intent to kill, assault by pointing a gun, possession of a firearm by a felon, felonious breaking and entering, and felonious larceny pursuant to breaking and entering. After careful review, we conclude that defendant received a fair trial free from prejudicial error.
Factual Background
The State's evidence tended to establish the following facts: On the evening of 4 April 2011, defendant arrived at the home of Ms. Esmelda Santos (“Ms.Santos”) in Faison, North Carolina. Defendant and Ms. Santos had been dating off and on for approximately six years but were not together at the time of the subject incident. The two had lived together in the past, but defendant moved out of Ms. Santos' home in late 2010.
At approximately 10:00 p.m. that night, Deputy Corey Love (“Deputy Love”) of the Duplin County Sheriff's Office received a text message from Ms. Santos asking him if he was asleep. Deputy Love responded that he was awake, and Ms. Santos invited him to her home. Deputy Love and Ms. Santos were in the back bedroom of her home when defendant knocked on the front door.
Deputy Love testified at trial that when Ms. Santos told defendant she had company and that he needed to leave, defendant went “out of control, out in a rage” and began banging on the side of the trailer, the front door, and the windows. Defendant then started knocking on the front door and asking for his Bluetooth headset. Ms. Santos opened the door to give him the headset, and defendant pushed past her to enter the trailer.
Deputy Love attempted to walk past defendant and leave the home. Defendant pushed Deputy Love against the wall, and the two began to struggle. Deputy Love again moved toward the door at which point defendant “racked [a] gun back and pointed it at [him].” Deputy Love identified himself as a deputy sheriff with the Duplin County Sheriff's Office and again tried to leave. Defendant then pointed the gun “dead at [him]” and fired. The shot missed Deputy Love, and he was able to leave the area unharmed.
Defendant called Deputy Love on Ms. Santos' phone soon afterward and told him that “it's not over” and that “when he sees [him] he's going to shoot [him].” Deputy Love then contacted his supervisors and completed an incident report.
The following day, Ms. Santos' sister drove by Ms. Santos' home and noticed defendant in the backyard. She asked defendant if her sister knew that he was there, and defendant replied that Ms. Santos “did him dirty.” Ms. Santos' sister noticed that defendant was holding a black Hefty trash bag. When she called her sister to inform her of this encounter with defendant, Ms. Santos told her that defendant was not supposed to be there and asked her to call the police. However, defendant drove away while Ms. Santos' sister was on the phone.
Defendant subsequently consented to a search of his home, and investigators found .40 caliber ammunition and two large trash bags containing women's clothing, perfume, and jewelry as well as two cameras and electrical components for cell phones. Defendant was charged with assault with a deadly weapon with intent to kill, assault by pointing a gun, possession of a firearm by a felon, felonious breaking and entering, felonious larceny pursuant to breaking and entering, and felonious possession of stolen goods. A jury trial was held during the June 2012 Criminal Session of Duplin County Superior Court, and the jury found defendant guilty of all charges.
The trial court sentenced defendant to four consecutive presumptive-range terms: (1) 38 to 55 months for assault with a deadly weapon with intent to kill; (2) 150 days for assault by pointing a gun to begin at the expiration of the above sentence; (3) 19 to 23 months for possession of a firearm by a felon; and (4) 11 to 14 months for both the felonious breaking and entering charge and the felonious larceny pursuant to breaking and entering charge. The trial court arrested judgment on the felonious possession of stolen goods offense. Defendant gave notice of appeal in open court.
Analysis
I. Motion to Dismiss
Defendant first argues that the trial court erred by denying his motion to dismiss the charges of assault with a deadly weapon with intent to kill, felonious breaking and entering, and felonious larceny pursuant to breaking and entering for insufficient evidence.
A trial court's denial of a defendant's motion to dismiss is reviewed de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E .2d 29, 33 (2007). On appeal, this Court must determine “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....” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation and quotation marks omitted). 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). The evidence must be viewed in the light most favorable to the State with every reasonable inference drawn in the State's 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).
Here, defendant contends that the trial court erred in denying his motions to dismiss the above-referenced charges because the State failed to present substantial evidence of (1) the “intent to kill” element of assault with a deadly weapon with intent to kill; (2) the “lack of consent” element of felonious breaking and entering; and (3) the “pursuant to a breaking and entering” element of felonious larceny. We discuss each of these arguments in turn.
A. “Intent to Kill” Element
In order to overcome a defendant's motion to dismiss a charge of assault with a deadly weapon with intent to kill, the State must provide substantial evidence that defendant committed “(1) an assault; (2) with a deadly weapon; (3) with the intent to kill....” State v. Coria, 131 N.C.App. 449, 456, 508 S.E.2d 1, 5 (1998). “An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence....” State v. Grisby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (citation and quotation marks omitted). An “intent to kill may be inferred from ‘the nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances.’ “ State v. Peoples, 141 N.C.App. 115, 118, 539 S.E.2d 25, 28 (2000) (quoting State v. White, 307 N.C. 42, 49, 296 S.E.2d 267, 271 (1982)).
In the present case, the following facts, when viewed in the light most favorable to the State, provide substantial evidence that defendant intended to kill Deputy Love: When defendant arrived at Ms. Santos' home, she told him she had company and that he needed to leave. Defendant went “out of control” and into a rage, “beating on the side of the trailer, the front door, [and] the window.” Once defendant entered the trailer, Deputy Love saw defendant coming toward him with a gun in hand. Defendant asked Deputy Love “what the F was [he] doing [t]here,” and as Deputy Love attempted to leave the trailer, the two became involved in a physical altercation. When Deputy Love again tried to leave, defendant “racked the gun back and pointed it at [him].” Deputy Love identified himself as a sheriff's deputy and, once more, tried to leave. He backed out into the yard, and as he was attempting to get into his car, defendant fired the gun.
Although defendant maintains that he shot the gun up into the air, Deputy Love testified that defendant was pointing the gun “dead at [him]” when defendant fired. When ruling on a motion to dismiss, the trial court allows the State every reasonable inference from the facts, and “[a]ny contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). From the evidence presented, a reasonable juror could conclude that defendant was enraged to find his former girlfriend with another man and that he shot at Deputy Love with the intent to kill him. Thus, the trial court properly denied defendant's motion to dismiss the charge of assault with a deadly weapon. See Peoples, 141 N.C.App. at 118, 539 S.E.2d at 28 (affirming trial court's denial of motion to dismiss assault with a deadly weapon with intent to kill inflicting serious injury charge for insufficient evidence of intent to kill where evidence showed that defendant (1) had a physical altercation with victim an hour earlier; (2) pointed gun at victim; (3) fired, missed and then fired again; and (4) continued to approach victim after second shot).
B. “Lack of Consent” Element
Defendant also contends that the State failed to offer sufficient evidence that he was in Ms. Santos' home without her consent during the incident giving rise to the felonious breaking and entering charge. We disagree.
The State must provide substantial evidence of each of the following elements in order to overcome a motion to dismiss a charge of felonious breaking and entering: “(1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein.” State v. Jones, 188 N.C.App. 562, 564–65, 655 S.E.2d 915, 917 (2008) (citation and quotation marks omitted). It is well established that the entry component of felonious breaking and entering is punishable “only if it is wrongful, i.e., without the owner's consent.” State v. Wheeler, 70 N.C.App. 191, 195, 319 S.E.2d 631, 634 (1984).
“Our Supreme Court has ruled that evidence is sufficient to prove lack of consent if it can support a reasonable inference by the jury that the dwelling was entered without the permission of the occupants.” State v. Salters, 137 N.C.App. 553, 558, 528 S.E.2d 386, 390 (2000). Here, Ms. Santos testified at trial that when her sister told her that defendant was at her home on 5 April 2011, she told her sister he was not supposed to be there and instructed her sister to call the police.
Defendant contends that because Ms. Santos testified that he had often stayed at her home and would be there when she was away, the State could not show that defendant lacked Ms. Santos' consent to be at the trailer on the occasion in question. Defendant's own testimony, however, provides additional evidence tending to show that Ms. Santos did not consent to him being at her home on 5 April 2011. When asked at trial whether he believed he had Ms. Santos' permission to be at the trailer, defendant replied: “In a way, yes, but in a way, no.” Defendant further explained that he “wanted to be there so [he] could talk to her even though she wasn't there.”
Defendant also admitted that although he returned the key that Ms. Santos had previously given him, he kept a copy of the key that he had made. He further conceded that Ms. Santos did not know that he had made a copy of her key.
Because the State is entitled to every reasonable inference capable of being drawn from the facts and because contradictions or discrepancies in the evidence are for the jury to resolve, the trial court properly denied defendant's motion to dismiss the felonious breaking and entering charge. The question of whether defendant was in Ms. Santos' home with or without her consent was a question for the jury to resolve. See State v. Lindley, 81 N.C.App. 490, 494, 344 S.E.2d 291, 294 (1986) (holding that whether defendant-victim's former spouse—had consent to enter victim's residence was question for jury with regard to felonious breaking and entering charge).
C. “Pursuant to a Breaking and Entering” Element
Finally, defendant contends that because there was insufficient evidence of a felonious breaking and entering, there was also—necessarily—insufficient evidence of larceny pursuant to a felonious breaking and entering. However, because we have concluded that the State provided substantial evidence of each of the essential elements of felonious breaking and entering, defendant's argument fails.
II. Jury Instructions
Defendant next argues that the trial court erred by failing to instruct the jury on the lesser-included offense of non-felonious breaking and entering. We disagree.
The trial court used the relevant sections of the North Carolina Pattern Jury Instructions—almost verbatim—to instruct the jury on felonious breaking and entering and non-felonious breaking and entering as a lesser-included offense. The instruction at issue reads as follows:
The defendant has been charged with felonious breaking or entering into another's building without his consent with the intent to commit a felony. For you to find the defendant guilty of this offense, the State must prove four things beyond a reasonable doubt:
First, that there was either a breaking or an entry by the defendant. Using a key to unlock a locked door would be a breaking. Entering into the building through that open door would be an entry. Second, the State must prove that it was a building that was broken into or entered. Third, that the owner did not consent to the breaking or entering. And fourth, that at the time of the breaking or entering the defendant intended to commit the felony of larceny. I refer you to the definition of intent as previously given.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant 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. If you do not so find or if you have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of felonious breaking or entering, but must determine whether the defendant is guilty of non-felonious breaking or entering.
Non-felonious breaking or entering differs from felonious breaking or entering in that it need not be done with the intent to commit a felony so long as the breaking or entering was wrongful, that is, without any claim of right.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant wrongfully broke into or entered another person's building without his consent, but [sic] you do find beyond a reasonable doubt that he intended to commit larceny, it would be your duty to return a verdict of guilty of felonious breaking or entering. If you do not so find or if you have a reasonable doubt as to one or more of these things; it would be your duty to return a verdict of not guilty.
Thus, the trial court did, in fact, instruct the jury on non-felonious breaking and entering and inform the jury of its duty to consider non-felonious breaking and entering if it had a reasonable doubt as to whether any of the elements of felonious breaking and entering had been met. The trial court failed, however, to include the option of finding defendant guilty of non-felonious breaking and entering in the concluding section of its instruction on the breaking and entering charge.
It is well established that this Court reviews a trial court's jury instructions
contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed.... The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by [the] instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.
State v. Blizzard, 169 N.C.App. 285, 296–97, 610 S.E.2d 245, 253 (2005) (citation and quotation marks omitted).
Here, defendant has failed to establish that any error in the above-referenced instructions likely misled the jury or affected the verdict. Although the trial court did not instruct the jury that it could find defendant guilty of non-felonious breaking and entering during the concluding section of its instruction on the breaking and entering charge, the court did charge the jury with respect to non-felonious breaking and entering earlier in the instruction and provided it with a definition of non-felonious breaking and entering. Furthermore, the verdict form clearly stated the options (1) “Guilty of Felonious Breaking and Entering”; (2) “Guilty of Non–Felonious Breaking and Entering”; or (3) “Not Guilty.”
Because the jury heard the trial court's earlier instruction on non-felonious breaking and entering and had this charge listed on the verdict form, defendant cannot demonstrate that the trial court's instructions likely misled the jury or affected the verdict. See State v. Hutchins, 303 N.C. 321, 346, 279 S.E.2d 788, 804–05 (1981) (holding that erroneous instruction on second-degree murder could not be prejudicial error when jury was properly instructed several times before). Accordingly, we conclude that the trial court's instruction on the breaking and entering charge was free from prejudicial error.
III. Evidence of Prior Break–Ins
Finally, defendant argues that the trial court erred in admitting evidence of prior break-ins at Ms. Santos' residence. At trial, Special Agent Raymond Reeves (“Special Agent Reeves”) of the State Bureau of Investigation testified that Ms. Santos informed him that defendant had previously broken into her home through the back door.
During his testimony, he also referenced two Computer Aided Dispatch (“CAD”) reports regarding Ms. Santos' address in Faison, North Carolina. Special Agent Reeves stated that a CAD report dated 19 March 2010 describing property damage to a door at her residence referenced both Ms. Santos and defendant and that another report dated 24 February 2010 “reference[d] something missing from that home.” He also testified that defendant was “the subject” of the 19 March 2010 CAD report. In addition, Special Agent Reeves responded affirmatively when the prosecutor asked him: “So while you may not know that this is a specific time that [defendant] may have made entry to her back door prior, it does appear she has reported something of that nature?” Defendant contends that this evidence was neither relevant nor was it offered for a proper purpose under Rule 404(b) of the North Carolina Rules of Evidence.
Because defendant did not object to this testimony at trial, he bears the burden of showing that the admission of this evidence constituted plain error. To successfully establish plain error, a “defendant must demonstrate that a fundamental error occurred at trial”—meaning that the error was such that it “had a probable impact on the jury's finding that the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation and quotation marks omitted).
Rule 404(b) of the North Carolina Rules of Evidence provides, in pertinent part, that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. R. Evid. Rule 404(b).
It is well established that Rule 404(b) is a “general rule of inclusion of relevant evidence of other crimes, wrongs or acts by defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense.” State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990) (emphasis in original).
Though it is a rule of inclusion, Rule 404(b) is still constrained by the requirements of similarity and temporal proximity. Prior acts are sufficiently similar if there are some unusual facts present in both crimes that would indicate that the same person committed them. We do not require that the similarities rise to the level of the unique and bizarre.
State v. Beckelheimer, 366 N.C. 127, ––––, 726 S.E.2d 156, 159 (2012) (internal citation and quotation marks omitted).
Here, there are significant similarities between the prior act and the charged offense. Defendant was charged with breaking and entering into Ms. Santos' home in Faison, North Carolina. The State offered evidence that defendant was similarly involved—approximately one year earlier—in a break-in at Ms. Santos' home at the same address. Thus, the prior act and the charged offense share the same location, the same victim, and the same type of act—a break-in at Ms. Santos' trailer. See State v. Stevenson, 169 N.C.App. 797, 801, 611 S.E.2d 206, 210 (2005) (holding that prior acts and charged offense were sufficiently similar where both involved same parties, same location, same illegal substance, and same behavior of fleeing by the defendant). We therefore conclude that the trial court did not err in admitting this evidence pursuant to Rule 404(b) to show defendant's intent to unlawfully enter Ms. Santos' residence on the day of the incident for which he was tried and convicted.
Defendant next argues that even if the evidence of the prior break-in was admissible under Rule 404(b), it nevertheless should have been excluded under Rule 403 because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. However, “[t]he balancing test of Rule 403 is reviewed by this [C]ourt for abuse of discretion, and we do not apply plain error ‘to issues which fall within the realm of the trial court's discretion.’ “ State v. Cunningham, 188 N.C.App. 832, 837, 656 S.E.2d 697, 700 (2008) (quoting State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied, 531 U.S. 1167, 148 L .Ed.2d 997 (2001)).
Finally, assuming arguendo that the trial court did err in allowing this evidence, defendant cannot establish that it had a probable impact on the jury's determination of guilt. Defendant's own testimony at trial was that he kept a copy of Ms. Santos' key without her knowledge, used it to enter her home when she was not there, and retrieved items from her home without her knowledge because he “wanted [them] back.” When asked whether he thought he had permission to be at Ms. Santos' home, defendant replied “[i]n a way, yes, but in a way, no.” Considering all of the evidence presented at trial, including defendant's own testimony, defendant has failed to show that the admission of the evidence regarding the prior break-ins rose to the level of plain error.
Nor could the admission of the 24 February 2010 CAD report—even if such admission was erroneous—have constituted plain error given that there was no evidence introduced linking defendant to the 24 February 2010 incident.
Conclusion
For the reasons stated above, we conclude that defendant received a fair trial free from prejudicial error.
NO ERROR.
Judges McGEE and GEER concur.