State v. Brown

• Decision Date: 21 February 2006
• Docket Number: No. COA05-136.,COA05-136.
• Citation: 626 S.E.2d 307
• Parties: STATE of North Carolina v. James Harrell BROWN, Defendant.
• Court: North Carolina Court of Appeals

626 S.E.2d 307

STATE of North Carolina v. James Harrell BROWN, Defendant.

No. COA05-136.

Court of Appeals of North Carolina.

February 21, 2006.

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Appeal by defendant from judgments entered 2 September 2004 by Judge F. Donald Bridges in Burke County Superior Court. Heard in the Court of Appeals 18 October 2005.

Attorney General Roy Cooper, by Assistant Attorney General Anita LeVeaux, for the State.

Franklin E. Wells, Jr., Asheboro, for defendant-appellant.

GEER, Judge.

Defendant James Harrell Brown appeals from his conviction on three counts of statutory rape of a person 13, 14, or 15 years old, two counts of felonious breaking or entering, and one count each of first degree burglary, statutory sexual offense against a person 13, 14, or 15 years old, and indecent liberties with a child. Defendant argues primarily on appeal that there was insufficient evidence to convict him of burglary and breaking or entering because the child victim consented to his nighttime entries into her parents' house. Defendant also makes a related argument pertaining to the jury instructions. Because the State presented evidence that defendant could not have reasonably believed that the child victim, a 13-year-old, had authority to consent to defendant's entry into her parents' home for the purpose of engaging in sexual intercourse with her and because the trial court properly instructed the jury on this issue, we find no error. Although we also hold that defendant's other contentions on appeal are without merit, we remand this case for the correction of certain clerical errors detailed below.

Facts

The State's evidence tended to show the following. In September 2003, defendant, age 45, began an Internet correspondence with the victim, D.N.K., age 13. D.N.K.'s online username, at the time, was "I'masexygirl." Defendant initiated the correspondence by sending D.N.K. a message saying: "A sexy girl can make men do unbelievable things." When defendant told D.N.K. that he was 45 years old, she informed him that he was too old to have a relationship with her, but that they could still be friends. Later, she told him that she was 13 years old.

The two continued to correspond over the Internet for about a month. During the course of their conversations, defendant asked D.N.K. if she was a virgin, and she replied that she was. Defendant told her that he wanted to have sex with her and that, because he was older and more experienced, he knew "how to be gentle and easy so that you can be fulfilled as a woman and not be hurt."

Defendant told D.N.K. that he wanted to see her, and encouraged her to sneak out of her parents' house to meet him. When D.N.K. refused to do so, the two made plans for defendant to come to D.N.K.'s house on Tuesday, 30 September 2003, between 10:00 and 11:00 p.m. D.N.K. gave defendant her home address and supplied him with a floor plan of her house. Defendant promised that he would bring some Cherry Coke mixed with alcohol to help D.N.K. "relax."

On the designated evening, defendant arrived at D.N.K.'s house wearing a camouflage shirt, pants, and hat, with a camouflage net over his face. As previously arranged, he signaled D.N.K. with a red penlight through the basement window of her house. When she saw the light, D.N.K. opened the basement door for defendant. After defendant entered the house, the two began hugging and kissing, and D.N.K. invited defendant to go up to her bedroom. Defendant instructed D.N.K. to go upstairs, close her bedroom door, turn her bedroom lights off, and open her window. After D.N.K. did so defendant climbed through the bedroom window, handed her two bottles of Cherry Coke mixed with alcohol, and hid in D.N.K.'s closet. Once D.N.K. was sure her parents had gone to bed, defendant got into D.N.K.'s bed with her, performed oral sex on her, and engaged in sexual intercourse. Defendant left the house around 4:30 a.m.

At approximately 11:00 p.m., on 2 October 2003, defendant again arrived at D.N.K.'s house, signaled her with the penlight, entered her bedroom by climbing through her window, gave her alcohol mixed with Coke, hid in her closet until her parents went to sleep, and then had intercourse with her and performed oral sex on her. He left before D.N.K. awoke in the morning.

On 8 October 2003, defendant went to a football game at D.N.K.'s middle school. He took her to a fast food restaurant and then dropped her off at the school. Later that night, at around 8:00 p.m., defendant went to D.N.K.'s home, signaled her with the penlight, and entered through her bedroom window. He and D.N.K. both hid in her bedroom closet, where they had intercourse and then fell asleep. While they were asleep in the closet, D.N.K.'s mother entered the bedroom. Although D.N.K. was still asleep, defendant awakened and quickly pulled his legs and feet into the closet, so that D.N.K.'s mother did not see him. Later, after D.N.K.'s parents had gone to sleep, defendant and D.N.K. had intercourse in her bed, and defendant left at about 4:30 a.m.

The next day, defendant e-mailed D.N.K. and told her that her mother had almost caught them. He said he wanted to end the relationship, explaining that he was too old for her, that "he could spend 20 years in prison for statutory rape if he got caught," and that "we cannot be sneaking around the next four years till you are of age." The same day, D.N.K.'s parents learned about D.N.K.'s relationship with defendant and called the police. In two separate statements to the police, defendant admitted that he had entered D.N.K.'s house three times while her parents were at home and that he had had sexual intercourse with her.

Following a jury trial, defendant was convicted, with respect to the events of 30 September 2003, of first degree burglary, indecent liberties with a child, statutory sexual offense against a person 13, 14, or 15 years old, and statutory rape of a person 13, 14, or 15 years old. As for the events of 2 and 8 October 2003, he was convicted of two counts of felonious breaking or entering and two counts of statutory rape of a person 13, 14, or 15 years old.

The trial court sentenced defendant to a total of four consecutive sentences of 240 to 297 months, based on his convictions for burglary, rape, and sexual offense. He also received a suspended sentence of 16 to 20 months for his indecent liberties conviction and suspended sentences of 6 to 8 months for each of his breaking or entering convictions.

I

Defendant argues on appeal that the trial court erred in denying his motions to dismiss for insufficiency of the evidence as to the burglary and felonious breaking or entering charges. In ruling on a defendant's motion to dismiss, the trial court must determine whether the State has presented substantial evidence (1) of each essential element of the offense and (2) of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002). "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). When considering the issue of substantial evidence in assessing a motion to dismiss, the trial court must view all of the evidence presented "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995).

"The elements of burglary in the first degree are the breaking and entering, in the nighttime, into a dwelling house or a room used as a sleeping apartment, which is actually occupied at the time of the offense, with the intent to commit a felony therein." State v. Simpson, 303 N.C. 439, 449, 279 S.E.2d 542, 548 (1981); see also N.C. Gen. Stat. § 14-51 (2005) (defining first degree burglary). The essential elements of felonious breaking or entering are "(1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein." State v. Williams, 330 N.C. 579, 585, 411 S.E.2d 814, 818 (1992); see also N.C. Gen.Stat. § 14-54(a) (2005) (defining felonious breaking or entering). Although the offense of burglary includes both a breaking element and an entering element, Simpson, 303 N.C. at 449, 279 S.E.2d at 548, the offense of felonious breaking or entering requires that the State only prove that either breaking or entering took place. State v. Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 579 (1982).

Defendant first argues that the State presented insufficient evidence to prove either burglary or felonious breaking or entering, since D.N.K., a resident of the house, consented to his entry. Defendant is correct that "[a] person entering a residence with the good faith belief that he has the consent of the owner or occupant or his authorized agent is not chargeable with the offense of breaking and entering." State v. Tolley, 30 N.C.App. 213, 215, 226 S.E.2d 672, 674, disc. review denied, 291 N.C. 178, 229 S.E.2d 691 (1976); see also State v. Friddle, 223 N.C. 258, 260, 25 S.E.2d 751, 752 (1943) ("[T]he fact that the breaking and entry was against the will of the owner [does not] create guilt as a matter of law. The intent with which the act was committed is material.").

Our courts have, however, recognized that a child who has a room in his or her parents' house does not have unlimited authority to allow entry to visitors. State v. Upchurch, 332 N.C. 439, 458, 421 S.E.2d 577, 588 (1992). Courts considering consent to entry given by a son or daughter have focused on the purpose of the entry and whether the child had authority to consent to entry for that purpose. See, e.g., id. ...