State Carolina v. Mcneil

• Decision Date: 01 March 2011
• Docket Number: No. COA10–456.,COA10–456.
• Citation: 707 S.E.2d 674
• Parties: STATE of North Carolinav.Jerry Junior McNEIL.
• Court: North Carolina Court of Appeals

707 S.E.2d 674

STATE of North Carolina

v.Jerry Junior McNEIL.

No. COA10–456.

Court of Appeals of North Carolina.

March 1, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from judgments entered 1 December 2009 by Judge W. Allen Cobb, Jr., in Sampson County Superior Court. Heard in the Court of Appeals 13 October 2010.

Attorney General Roy Cooper, by Special Deputy Attorney General Anne J. Brown, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender S. Hannah Demeritt, for defendant-appellant.

CALABRIA, Judge.

Jerry Junior McNeil (“defendant”) appeals judgments entered upon jury verdicts finding him guilty of felonious breaking or entering, felonious larceny, and possession of a firearm by a felon. We arrest judgment for defendant's conviction for felonious larceny, find no error in defendant's convictions for felonious breaking or entering and possession of a firearm by a felon, and vacate the trial court's judgment requiring defendant to pay restitution and remand for redetermination.

I. BACKGROUND

At 11:00 a.m. on 29 November 2007, Katrina Carroll (“Carroll”) heard “loud banging and crashing” at the back door of the home she shared with Gary Willis (“Willis”) at 205 Carolina Avenue in Clinton, North Carolina. The person who made the noise was a man. Since the man was entering the back door of her home without permission, Carroll rushed to the front door to exit her home. She also observed that the man, later identified as defendant, had a dreadlock hairstyle and wore a yellow toboggan with a black stripe.

After Carroll successfully exited her home, she met an elderly couple (“the couple”) who offered her a ride in their vehicle. The couple then drove Carroll to a neighbor's home and parked in the driveway located approximately 15 to 20 feet from Carroll's driveway. There Carroll observed a gold automobile (“the automobile”) parked in her driveway. As the automobile backed out of Carroll's driveway, she observed three men in the automobile. The man sitting in the back seat, subsequently identified as defendant, had a dreadlock hairstyle and wore a yellow toboggan with a black stripe. The man sitting in the back seat was the same man who entered Carroll's back door as she exited her home. As the automobile slowly backed out of the driveway, Carroll had enough time to record the numbers on the automobile's license plate.

At 11:14 a.m., Carroll contacted the Clinton Police Department (“CPD”), reported what happened at her home, and gave Detective Dameon Parker (“Detective Parker”) the numbers from the license plate of the automobile that backed out of her driveway. Detective Parker found that the automobile was registered to defendant. When Detective Parker arrived at Carroll's home five minutes later, he discovered that the back door was “busted in,” “splinters of wood” were on the floor, and the “lock had been kicked in.” During the investigation, Detective Parker asked Carroll if anything was missing from her home. She told him that Willis kept a 9 mm handgun (“the gun”) in the nightstand beside her bed in the master bedroom and it was missing. Detective Parker then entered the master bedroom, noticed that the nightstand's drawer had been opened, and observed that the gun was not in the drawer. Neither Carroll nor Willis had given anyone permission to enter their home or to take the gun. Carroll and Willis then provided the serial number of the handgun to Detective Parker.

Shortly after the incident at the Carroll/Willis residence, at 11:30 a.m. on 29 November 2007, Esther Bass (“Bass”) heard a knock at the back door of her home at 220 West Carter Street in Clinton, North Carolina. Bass' daughter, who formerly dated defendant, opened the door for defendant and two other men (collectively, “the three men”). After the three men entered Bass' home, Bass' daughter warned them that law enforcement officers were “around the house.” Bass observed the three men as they walked through her dining room and exited through her front door.

Officer Willie Bowden (“Officer Bowden”) and Detective Grady (collectively, “the officers”) of the CPD were the officers who responded to a call and arrived at Bass' home. During Officer Bowden's investigation, he observed a gold automobile parked in the driveway. He also observed “three to four” men, including defendant, standing on the front porch of Bass' home.

Bass gave the officers permission to search her home. Since the officers learned that defendant entered the home through the back door, they searched the area surrounding the back door. The laundry area was an area next to the back door. Detective Grady found a 9 mm handgun inside a clothes hamper located in the laundry area. When the serial number on the gun found in the clothes hamper was checked, it matched the serial number of the gun that was missing from Carroll's home.

Defendant was arrested and indicted for felonious breaking and entering, felonious larceny pursuant to breaking and entering, possession of stolen goods, and possession of a firearm by a convicted felon. Although defendant was also indicted for attaining the status of an habitual felon, the trial court later dismissed this indictment.

The case was heard before the 15 June 2009 criminal session of Sampson County Superior Court. On the first day of the trial, the trial court ordered defendant to return to the courtroom no later than 2:00 p.m. following lunch recess. However, defendant failed to appear for trial following the recess. The trial did not resume until 3:08 p.m. that day. According to the transcript, defendant never returned to court. Defendant's counsel moved to dismiss all charges at the close of the State's evidence, and the trial court denied the motion. Defendant did not present evidence. The jury returned verdicts finding defendant guilty of felonious breaking or entering, felonious larceny, possession of stolen goods, and possession of a firearm by a felon.

The trial court sentenced defendant to minimum terms of 11 months to maximum terms of 14 months on the charges of felonious larceny and felonious breaking or entering. On the charge of possession of a firearm by a convicted felon, the trial court sentenced defendant to a minimum term of 19 months to a maximum term of 23 months.¹ The trial court ordered defendant to serve all sentences consecutively in the custody of the North Carolina Department of Correction, and also ordered defendant to pay $217.40 as restitution to Willis for the damage to the door. Defendant appeals.

II. INDICTMENT FOR FELONIOUS LARCENY

Defendant argues that the trial court erred in entering judgment for felonious larceny because the indictment, which failed to allege ownership of the 9 mm handgun, was fatally defective. We agree.

An indictment must allege “facts supporting every element of [the charged] criminal offense ... with sufficient precision to apprise the defendant ... of the conduct which is the subject of the accusation.” N.C. Gen.Stat. § 15A–924(a)(5) (2009). We review the sufficiency of an indictment de novo. State v. McKoy, 196 N.C.App. 650, 652–53, 675 S.E.2d 406, 409 (2009). A defective indictment deprives the trial court of jurisdiction. State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 209 (2001). An indictment is invalid and prevents the trial court from acquiring jurisdiction over the charged offense if “fails to state some essential and necessary element of the offense of which the defendant is found guilty.” State v. Wilson, 128 N.C.App. 688, 691, 497 S.E.2d 416, 419 (1998). An essential element of larceny is that the defendant “took the property of another.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982), overruled on other grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010). “An indictment for larceny which fails to allege the ownership of the property ... is fatally defective.” State v. Cathey, 162 N.C.App. 350, 352–53, 590 S.E.2d 408, 410 (2004).

In the instant case, defendant's indictment for felonious larceny alleged:

And the jurors for the State upon their oath present that on or about the date of the offense shown [29 November 2007] and in Sampson County the defendant named above unlawfully, willfully, and feloniously did steal, take and carry away a 9mm handgun, pursuant to a violation of section 14–54(a) of the General Statutes of North Carolina.

The indictment failed to allege ownership of the 9 mm handgun. The State concedes that the indictment fails to allege ownership of the handgun, and is therefore fatally defective. We agree. Since the indictment for felonious larceny is fatally defective because it failed to allege ownership of the gun, it is insufficient to confer jurisdiction, and this Court arrests the judgment. State v. McKoy, 265 N.C. 380, 381, 144 S.E.2d 46, 48 (1965).

III. MOTION TO DISMISS

Defendant argues that the trial court erred by denying his motion to dismiss the charges of felonious breaking or entering and possession of a firearm by a felon. Defendant claims the State failed to present substantial evidence that he was the perpetrator who entered Carroll's house, stole a gun, and also that he possessed a gun. We disagree.

“This Court reviews a trial court's denial of a motion to dismiss criminal charges de novo, to 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 of such offense.’ ” State v. Davis, 197 N.C.App. 738, ––––, 678 S.E.2d 385, 388 (2009) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)), affirmed in part, reversed in part on other grounds, and remanded, 364 N.C. 297, 698 S.E.2d 65 (2010). “Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion.” State v. Hargrave, 198 N.C.App. 579, 588, 680 S.E.2d 254, 261 (2009). “The evidence is to be considered in the light most favorable to the State; ...