State v. Mitchell
| Citation | 759 S.E.2d 335 |
| Decision Date | 17 June 2014 |
| Docket Number | No. COA13–1080.,COA13–1080. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE of North Carolina v. Markeith Rayshoun MITCHELL, Defendant. |
OPINION TEXT STARTS HERE
Appeal by defendant from judgments entered 16 May 2013 by Judge Marvin K. Blount, III in Nash County Superior Court. Heard in the Court of Appeals 22 January 2014.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.
William B. Gibson, Winston–Salem, for defendant-appellant.
Defendant Markeith Rayshoun Mitchell appeals from his convictions of felonious breaking or entering a motor vehicle, first degree trespass, injury to real property, and attempted larceny. On appeal, defendant primarily contends that the trial court erred in denying his motion to dismiss the charge of breaking or entering and in instructing the jury on a charge of “breaking or entering” when the indictment charged “breaking and entering.” We hold that because of the disjunctive language of N.C. Gen.Stat. § 14–56 (2013), the State need not prove both a breaking and an entering and the instruction was not erroneous. The State's evidence that defendant opened the car door with intent to steal the car itself was substantial evidence that defendant committed a breaking with intent to commit a felony therein. Because defendant does not challenge the sufficiency of the State's evidence as to the remaining elements of the charge, we hold that the trial court did not err in denying the motion to dismiss.
The State's evidence tended to show the following facts. On 26 March 2012, defendant offered Marcus Lucas $50.00 to “help him get a car.” The two men drove in defendant's Jeep Cherokee to 1021 Russell Street, the property where the vehicle was located. When they arrived, the fence around the property was locked. Defendant and Lucas tore the fence down and entered the property.
Once inside, defendant backed his Jeep up to a shelter in the backyard where a 1979 Dodge Aspen was parked. Defendant and Lucas exited the Jeep, and defendant opened the door of the Dodge. Lucas stood back as defendant retrieved the tire pump from his Jeep and began pumping up the flat tire on the Dodge.
Meanwhile, Officer J.K. Richardson of the Rocky Mount Police Department received a call that a breaking and entering was in progress on 1021 Russell Street. Officer Richardson arrived at the scene a short time later and announced his presence as he approached the garage. Although Lucas immediately fled, defendant, who was at the rear of the Dodge pumping the tire, did not see the police arrive. Defendant was arrested at the scene, while Lucas was arrested later.
After taking defendant into custody, Officer Richardson returned to the garage. The Jeep was backed up to the garage approximately five feet from the Dodge, and the trunk and driver's door of the Jeep were open. Inside the Jeep, Officer Richardson saw an air compressor and a metal pipe with pieces of rope on each end, an apparatus that is normally used for towing vehicles. There was a rope attached to the back of the Jeep that went toward the Dodge, but was not yet hooked up to the Dodge.
The driver's side door of the Dodge had been left open. Officer Richardson concluded that the door had recently been opened because it was pollen season and the outside of the Dodge and the garage were both very dusty, but there was no pollen on the interior of the Dodge or on the tool kits and tarps stored inside the Dodge.
The Dodge and the property where it was parked belonged to Brenda Simmons, who had inherited it from her deceased parents. Ms. Simmons had never opened the driver's door of the Dodge after her father passed away. She had visited her property the evening prior to defendant's arrest while it was still daylight out and, from her vantage point in the backyard, she had not noticed the car door of the Dodge being open. Ms. Simmons did not know defendant or Lucas and did not consent to either of them coming on her property or taking the Dodge.
On 4 June 2012, defendant was indicted for attempted larceny, first degree trespass, injury to real property, and breaking and entering a motor vehicle. At trial, defendant testified on his own behalf. He claimed that, on the morning of 26 March 2012, he was out driving when he saw Lucas motion for him to stop. Lucas told defendant that a friend had given him a car and that he needed someone to help him get the car home. He offered defendant $50.00 to help, and defendant agreed. Lucas already had a chain for towing, but they went to defendant's uncle's house to get a towing bar and an air compressor. When they arrived at the property where the car was located, defendant saw that there was a locked fence, but Lucas pulled the fence over to one side with his hands.
Once they gained entry onto the property, defendant backed the Jeep up to the Dodge while Lucas retrieved a chain off the dog house in the backyard. At that point, the police arrived and Lucas fled. Defendant did not flee because he did not know that they were stealing a car. Defendant denied having ever touched the Dodge, having opened the car door, or having noticed that the door was ajar.
The jury found defendant guilty of attempted larceny, first degree trespass, injury to real property, and breaking or entering a motor vehicle. The trial court sentenced defendant to 60 days imprisonment on the consolidated charges of attempted larceny, first degree trespass, and injury to real property. The trial court also sentenced defendant to six to 17 months imprisonment for breaking or entering a motor vehicle, but suspended the sentence and imposed 24 months of supervised probation. Defendant timely appealed to this Court.
Defendant first argues that the trial court erred in denying his motion to dismiss the charge of felonious breaking or entering a motor vehicle. “ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
“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). We must “consider all evidence admitted, whether competent or incompetent, 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).
Defendant was charged with breaking and entering a motor vehicle in violation of N.C. Gen.Stat. § 14–56. In order to obtain a conviction for breaking and entering a motor vehicle,
“the State must prove the following five elements beyond a reasonable doubt: (1) there was a breaking or entering by the defendant; (2) without consent; (3) into a motor vehicle; (4) containing goods, wares, freight, or anything of value; and (5) with the intent to commit any felony or larceny therein.”
State v. Clark, 208 N.C.App. 388, 390–91, 702 S.E.2d 324, 326 (2010) (quoting State v. Jackson, 162 N.C.App. 695, 698, 592 S.E.2d 575, 577 (2004)). Defendant contends that the State presented insufficient evidence of the first and fifth elements.
As to the first element, evidence of either a breaking or an entering satisfies the State's burden of proof. See State v. Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 579 (1982) ().
This Court has held that
State v. Baskin, 190 N.C.App. 102, 109, 660 S.E.2d 566, 572 (2008) (quoting State v. Graham, 186 N.C.App. 182, 196–97, 650 S.E.2d 639, 649 (2007)). A breaking may be established by a “ ‘mere pushing or pulling open of an unlocked door or the raising or lowering of an unlocked window, or the opening of a locked door with a key.’ ” State v. Garcia, 174 N.C.App. 498, 502, 621 S.E.2d 292, 296 (2005) (quoting State v. Bronson, 10 N.C.App. 638, 640, 179 S.E.2d 823, 825 (1971)).
Where, as here, the trial court instructs the jury on the acting in concert doctrine, the State's burden as to the element of breaking can be satisfied by showing either the defendant personally committed the breaking or that he acted in concert with someone to commit the breaking. See Baskin, 190 N.C.App. at 109–10, 660 S.E.2d at 572 ().
In this case, the evidence viewed in the light most favorable to the State is sufficient to show that defendant, or, alternatively, Lucas acting in concert with defendant committed a breaking by opening the door of the Dodge. Officer Richardson testified that when he arrived on the scene, defendant was standing near the Dodge and the Dodge's driver-side door was open. The State also presented evidence that the door must have...
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State v. Barnard
...wares, freight, or anything of value; and (5) with the intent to commit any felony or larceny therein." State v. Mitchell , 234 N.C. App. 423, 427, 759 S.E.2d 335, 338 (2014).Larceny is the taking and carrying away of the property of another without the owner's consent and with the intent t......