State v. Cherry
| Decision Date | 02 August 2011 |
| Docket Number | NO. COA10-988,COA10-988 |
| Parties | STATE OF NORTH CAROLINA v. TIMOTHY DARNELL CHERRY, Defendant. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by defendant from judgment entered 5 May 2010 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 February 2011.
M. Alexander Charns for defendant-appellant.
Defendant Timothy Darnell Cherry appeals his conviction of felony breaking and entering and felony possession of stolen goods. Defendant primarily contends that the trial court erred when it refused to give a jury instruction on the lesser included offense of misdemeanor breaking and entering. In order to be guilty of the felony offense, a defendant must have had the intent to commit a felony or larceny inside the buildingwhen he broke into the building. The misdemeanor offense does not require any specific intent. Because the evidence presented at trial would not have allowed the jury to conclude that defendant broke into the victim's house without the intent to steal, the trial court did not err in refusing to instruct the jury on misdemeanor breaking and entering.
The State's evidence tended to show the following facts. On 23 September 2009, Tanya Beamon returned home and discovered that her computer was missing. She ran out of her house to two police officers who were inside a police cruiser on the corner. They returned with her to the house. When they allowed her to go back inside, she discovered that other items were missing as well, including a keyboard, tapes, movies, a VCR, a DVD player, a mobile phone, her checkbook, and an ATM card.
When Ms. Beamon later learned that someone was selling her things at a nearby store, she called the police and then went to the store herself. The police ultimately found parts of Ms. Beamon's computer in the trunk of the car defendant was driving. Defendant had Ms. Beamon's checkbook in his pocket and her ATM card in an envelope. The police arrested defendant and charged him with felony breaking and entering, felony larceny, and felony possession of stolen goods. After defendant wasarrested, he waived his Miranda rights and signed a written statement admitting that he broke into Ms. Beamon's house through her back door, stole her computer, and then tried to sell the computer.
At trial, after the State concluded its case, the trial court dismissed the felony larceny charge. Defendant then testified on his own behalf. Defendant denied having broken into Ms. Beamon's house and claimed that he only confessed in order to protect a friend. Defendant admitted that before Ms. Beamon moved into the house, he had gone inside, while it was still empty, to smoke crack. He knew Ms. Beamon because he had sold her DVDs in the past and, on that occasion, he had been able to look into her house and see what she had inside.
The jury found defendant guilty of felony breaking and entering and felony possession of stolen goods. Defendant then pled guilty to being a habitual felon and stipulated to the aggravating factor that he had been found in willful violation of probation. The trial court sentenced defendant to an aggravated-range term of 180 to 225 months imprisonment. Defendant timely appealed to this Court.
Defendant first contends that the trial court erred by not instructing the jury on the lesser included offense ofmisdemeanor breaking or entering. "'An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.'" State v. Ryder, 196 N.C. App. 56, 63, 674 S.E.2d 805, 811 (2009) (quoting State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002)).
"'Where there is no evidence to negate [the elements of the greater offense] other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of [a lesser included offense.]'" State v. Bass, 190 N.C. App. 339, 346, 660 S.E.2d 123, 128 (quoting State v. Reid, 175 N.C. App. 613, 623, 625 S.E.2d 575, 584 (2006)), appeal dismissed and cert. denied, 362 N.C. 683, 670 S.E.2d 566 (2008). "'The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.'" State v. Ledwell, 171 N.C. App. 328, 333, 614 S.E.2d 412, 415 (quoting State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985)), disc, review denied, 360 N.C. 73, 622 S.E.2d 624 (2005).
Pursuant to N.C. Gen. Stat. § 14-54 (2009), the difference between felony breaking and entering and misdemeanor breakingand entering is whether the person has an intent to commit a felony or larceny inside the building:
Thus, a person who wrongfully breaks into a building without any intent to commit a felony or larceny is guilty of misdemeanor breaking and entering.
Here, defendant argues that "[t]he evidence is conflicting about whether [defendant] went in the prosecutrix's house, and if he did, why he went inside." Any conflict in the evidence as to whether defendant even entered Ms. Beamon's house is, however, irrelevant with respect to the lesser included offense issue. Defendant's evidence that he did not enter the house relates to whether there was any breaking or entering at all. In other words, that evidence amounts to a denial that defendant committed any offense and cannot support an instruction on the lesser included offense. See State v. Mangum, 158 N.C. App. 187, 197, 580 S.E.2d 750, 757 (), disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003).
We must instead decide whether a jury could find that, assuming defendant broke into Ms. Beamon's home, he did so with the intent to commit a felony. This Court's decision in State v. Berry, 58 N.C. App. 355, 358, 293 S.E.2d 650, 652 (1982), aff'd per curiam, 307 N.C. 463, 298 S.E.2d 386 (1983), is controlling. The Berry Court noted that in cases in which "nothing was taken or disturbed inside the building" that was entered, "it could be inferred the defendants did not intend to take anything," thus supporting an instruction on misdemeanor breaking and entering. Id. In Berry, however, "all the evidence showed a television set had been moved from the den to the front door." Id. The Court therefore concluded: Id.
Similarly, here, all the evidence indicated that whoever entered Ms. Beamon's home removed her computer, electronic equipment, and other property. There is no evidence that defendant or anyone else entered Ms. Beamon's home on the night at issue for any reason other than taking that property. SeeState v. Hamilton, 132 N.C. App. 316, 319, 512 S.E.2d 80, 83 (1999) . Because the record contains no evidence that would permit the jury to find that defendant wrongfully entered Ms. Beamon's house without an intent to steal, the trial court did not err by refusing to instruct the jury on the lesser included offense.
Defendant further contends on appeal that Defendant did not, however, make this argument at trial. "'[W]here a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.'" State v. Muhammad, 186 N.C. App. 355, 358, 651 S.E.2d 569, 572 (2007) (quoting State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002)), appeal dismissed, 362 N.C. 242, 660 S.E.2d 537 (2008). Accordingly, we find no error in the trial court's denial ofdefendant's request for an instruction on misdemeanor breaking and entering.
Defendant next contends that he received ineffective assistance of counsel. He first argues that his defense attorney admitted during opening statements that defendant was guilty without first obtaining defendant's consent. Our Supreme Court has held that "ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been...
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