State v. Barnett

• Decision Date: 21 December 1993
• Docket Number: No. 9327SC362,9327SC362
• Citation: 437 S.E.2d 711,113 N.C.App. 69
• Parties: STATE of North Carolina v. Ronny Dale BARNETT.
• Court: North Carolina Court of Appeals

Page 711

437 S.E.2d 711

113 N.C.App. 69

STATE of North Carolina v. Ronny Dale BARNETT.

No. 9327SC362.

Court of Appeals of North Carolina.

Dec. 21, 1993.

[113 N.C.App. 71] Atty. Gen. Michael F. Easley by Sp. Deputy Atty. Gen. Lorinzo L. Joyner, Raleigh, for the State.

Funderburk, Gheen & Cloninger by Stephen T. Gheen, Gastonia, for defendant-appellant.

GREENE, Judge.

Ronny Dale Barnett (defendant) was indicted, tried, and convicted by a jury of one count of first-degree burglary, one count of felonious larceny, and one count of felonious possession of stolen goods during the 16 November 1992 criminal session of Gaston The State's evidence tends to show the following: Between the hours of 10:00 p.m. on 3 April 1992 and approximately 6:30 a.m. on 4 April 1992, someone broke into the home of Alvin and Barbara Howery (the Howerys), who lived with their daughter, Sara Howery (Ms. Howery), in Gastonia, Gaston County, North Carolina. On 3 April 1992, Ms. Howery and her mother retired to bed around 10:00 p.m. after Ms. Howery made sure the back door of the house was locked. Ms. Howery testified that between 2:00 a.m. and 3:00 a.m. on 4 April 1992, her dog was barking loudly, and although Ms. Howery testified she usually arose to quiet her dog, she did not on that particular occasion. When Ms. Howery awoke on 4 April 1992 around 6:30 a.m., she discovered the back door open and her pocketbook missing and called the police around 7:00 a.m. It is undisputed that no one saw defendant enter the Howerys' home, no latent fingerprints were found at the home, and a K-9 search in the general area around the home produced no evidence implicating defendant, who lived next door to the Howerys. On 4 April 1992, defendant went to a local convenience store around 8:00 a.m. and attempted to sell Ms. Howery's pocketbook. A consent search of defendant's residence did not produce any other fruits of the crime. At the close of the State's evidence, defendant moved to dismiss each of the charges, which motion was denied.

County Superior Court. After the convictions, defendant entered guilty pleas to felonious breaking and entering, five counts, and felonious larceny, four counts. For the first-degree burglary offense, defendant was sentenced to life, and for the larceny and possession of stolen goods offenses, he was sentenced to ten years each, to run consecutively with the first-degree burglary count, but concurrently with each other. The trial court consolidated four counts of felonious breaking and entering with the four counts of felonious larceny and sentenced defendant to ten years for each consolidated felony, to run consecutively with each other, but concurrent to the term of life for first-degree burglary. For the one count of felonious breaking and entering unaccompanied by a larceny charge, defendant received ten years to run consecutively to the other breaking and entering sentences, but concurrently to the term of life for first-degree burglary. Defendant appeals from all judgments and sentences.

Defendant presented evidence of an alibi defense, claiming that he had been at a girlfriend's house from 9:00 p.m. on 3 April 1992 until around 7:00 a.m. on 4 April 1992. He testified that he found Ms. Howery's purse a block or two from his home at which time he remembered he was supposed to baby-sit for his other girlfriend with whom he shared a child and decided to give this other girlfriend the pocketbook. Defendant did not stay at this second girlfriend's home because he did not need to baby-sit and did not give his second girlfriend the pocketbook because she was not at home. Defendant testified he tried to sell Ms. Howery's purse to the clerk at the convenience store to buy some food and beer. At the close of all the evidence, defendant renewed his motion to dismiss the charges, which was again denied by the trial court.

After the convictions on the burglary, larceny, and possession of stolen goods charges, defendant plead guilty to the consolidated breaking and entering and larceny charges, four counts, and the one count of breaking and entering. Defendant answered the trial judge affirmatively and without equivocation when asked if he understood the nature and elements of the charges, the pleas and their effect, the possibility of a maximum sentence of ninety years, the right to remain silent and that any statement defendant made could be used against him, the right to plead not guilty and be tried by a jury and be confronted by the witnesses against him, and whether defendant entered the pleas with his own free will fully understanding what he was doing and whether he was satisfied with his trial counsel's legal services. Defendant answered in the negative when the trial court asked if he was under the influence of drugs or alcohol, but informed the trial court that he was under medication. After defendant answered these questions, the following exchange took place:

THE COURT: Do you have any questions about what has just been said to you or THE DEFENDANT: No, sir. Your Honor, I have been convicted of a felony. This is my first time, sir.

about anything else connected with your cases?

THE COURT: But do you have any questions about what I've just said to you or about anything else connected with your cases?

THE DEFENDANT: No, sir, but I would like to say this--

( [trial counsel] confers with the defendant at the defense table. Discussion is off the record).

THE DEFENDANT: No, sir.

After this exchange, defendant stipulated that there was a factual basis to support the pleas and consented to the State's giving a shorthand statement of the facts supporting the guilty pleas. After the State's shorthand statement, the court accepted defendant's guilty pleas and ordered them recorded.

After accepting the pleas, the court took evidence of aggravating factors from the State and mitigating factors from defendant to consider in the sentencing. During this stage, defendant's trial counsel indicated to the court that defendant wished to address the court. After receiving permission to address the trial court, defendant stated:

I really ain't understanding what happened; but I have been charged with these things; and it has come to a fact that I have to plead to make my life sentence better; and if there is any way possible, sir, you can take it into consideration and look into it--these three that I'm pleading into, sir--really, I don't know what I'm pleading into....

The trial judge then asked if defendant had a problem with controlled substances to which defendant stated he thought he had a "drinking problem." The court proceeded to the sentencing stage after which defendant again addressed the court and stated that "I don't fully understand it, sir. [My trial counsel] said that I had a life sentence--anything I had to do without that wouldn't be more than life." The defendant also asked "can I not come back to court--and I just misunderstand this, sir."

On 15 December 1992, the trial court appointed appellate counsel due to a conflict order concerning defendant's trial counsel's ability to represent defendant at the appellate level. Subsequently, on 22 December 1992 and 15 February 1993, extensions of time to serve the proposed Record on Appeal were allowed. On 12 April 1993, defendant filed a Motion for Appropriate Relief alleging ineffective assistance of counsel.

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The issues presented are whether (I) the State produced sufficient evidence of the element of nighttime to establish burglary; (II) a defendant's statement after a guilty plea is accepted is relevant for purposes of N.C.Gen.Stat. § 15A-1022; (III) consolidating convictions for judgment cures the prohibition against convictions on both possession of stolen goods and larceny for the same goods; and (IV) the evidence before this Court is sufficient to justify this Court's ruling on defendant's motion for appropriate relief.

I TRIAL

The offense of first-degree burglary consists of six elements: (1) the breaking, (2) and entering, (3) in the nighttime, (4) into a dwelling house or sleeping apartment of another, (5) which is actually occupied at the time of the offense, and (6) with the intent to commit a felony therein. State v. Davis, 282 N.C. 107, 116, 191 S.E.2d 664, 670 (1972). If, however, the breaking and entering into a dwelling house or sleeping apartment of another with the intent to commit a felony therein occurs during the daytime, the offense committed is felonious breaking and entering, and not burglary. State v. Cox, 281 N.C. 131, 187 S.E.2d 785 (1972). In North Carolina, there is no statutory definition of nighttime; however, our courts adhere to the common law definition of nighttime as that time after sunset and before sunrise "when it is so dark that a man's face cannot be identified except by artificial light or moonlight." State v. Frank, 284 N.C. 137, 145, 200 S.E.2d 169, 175 (1973); State v. Ledford, 315 N.C. 599, 607, 340 S.E.2d 309, 315 (1986). Therefore, to survive the motion to dismiss, the The evidence, in the light most favorable to the State, see Lynch, 327 N.C. at 215, 393 S.E.2d at 814, shows someone broke into the Howerys' home between 10:00 p.m. on 3 April 1992 and around 6:30 a.m. on 4 April 1992 when Ms. Howery awoke to find her purse gone and her back door open. Her dog barked at some time between 2:00 a.m. and 3:00 a.m. on 4 April 1992, but she did not arise to see why her dog was barking. The State did not present any evidence as to the condition of light outside when Ms. Howery arose on 4 April 1992, but we take judicial notice that on 4 April 1992 in Gaston County, civil twilight began at 5:41 a.m., and the sun rose at 6:07 a.m. See the schedule for sunrise and sunset in Gastonia, Gaston County, North Carolina computed by the Nautical Almanac Office, United States Naval Observatory; see also State v. Garrison, 294 N.C. 270, 280, 240 S.E.2d 377, 383 (1978) (our Supreme Court takes judicial notice of U.S....